Archive for 2010

Fayiz Al-Kandari, A Kuwaiti Aid Worker in Guantánamo, Loses His Habeas Petition

For Fayiz al-Kandari, one of the last two Kuwaitis in Guantánamo, American justice has always been an oxymoron. Although he has maintained, for nearly nine years, that he is an innocent man, and although the US government has no evidence against him, he was put forward for a trial by Military Commission under President Bush, and, last Friday, lost his habeas corpus petition in the District Court in Washington D.C., consigning him, on an apparently legal basis, to indefinite detention in Guantánamo.

Nevertheless, throughout his long detention, al-Kandari has refused to let his disappointment with the US justice system drag him down, and has found the strength to joke about it whenever he is visited by his lawyers. As his military defense attorney, Lt. Col. Barry Wingard, explained in an op-ed in the Washington Post in June 2009:

Each time I travel to Guantánamo Bay to visit Fayiz, his first question is, “Have you found justice for me today?” This leads to an awkward hesitation.
“Unfortunately, Fayiz,” I tell him, “I have no justice today.”

Judge Colleen Kollar-Kotelly’s unclassified opinion has not yet been published, so the details of her reasoning are as yet unknown, but enough of al-Kandari’s story has been reported to understand the weakness of the government’s case, and it beggars belief that a sound reason for denying his petition could have been conjured up at the last minute.

Al-Kandari, who is from a wealthy family in Kuwait, and has a history of providing humanitarian aid in countries where Muslims were suffering (in Bosnia in 1994, and in Afghanistan in 1997), has persistently stated that he arrived in Afghanistan at the end of August 2001, on a humanitarian aid mission that involved building two wells and repairing a mosque for a small rural community. He has also repeatedly stated that, sometime after the US-led invasion in October 2001, he set off for Pakistan, after being shown a leaflet that had a picture of an Afghan holding a bag with a dollar sign on it, accompanied by some text, which, in essence, said, “Turn in Arabs and this will be you,” but was then seized by Northern Alliance soldiers who subsequently sold him to US forces.

The US authorities do not dispute the date of his arrival, but they claim that, in the three to four months before his capture in December 2001, he visited the al-Farouq training camp (the main training camp for Arabs in the years before 9/11) and “provided instruction to al-Qaeda members and trainees,” served as an adviser to Osama bin Laden, and “produced recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad.”

However, as I explained in a major profile of al-Kandari in October 2009:

[T]he government has never attempted to explain how he “provided instruction to al-Qaeda members and trainees” at al-Farouq, when the camp closed less than a month after his arrival in Afghanistan, and, more importantly, how he was supposed to have undertaken all this training, provided all this instruction and advice, and produced videos and audiotapes during the small amount of time that he actually spent in Afghanistan.

At a military review board in Guantánamo in 2005, al-Kandari attempted to expose the implausibility of these allegations, when he asked:

At the end of this exciting story and after all these various accusations, when I spent most of my time alongside bin Laden as his advisor and his religious leader … All this happened in a period of three months, which is the period of time I stayed in Afghanistan? I ask, are these accusations against Fayiz or against Superman?

Despite this, the authorities have refused to accept al-Kandari’s account of his activities, even though a cursory glance at the allegations against him demonstrates that, of the 20 allegations against him, 16 are attributed to an unidentified “individual,” and only one — a claim that he “suggested that he and another individual travel to Afghanistan to participate in jihad and … provided them with aliases” — came from al-Kandari himself (and has been refuted by him).

The paucity of evidence is so extreme that, after his Combatant Status Review Tribunal in 2004 (a deliberately one-sided process designed to rubber-stamp the men’s prior designation as “enemy combatants”), the tribunals’ legal advisor made a point of dissenting from the tribunal’s conclusion that he was an “enemy combatant,” stating:

Indeed, the evidence considered persuasive by the Tribunal is made up almost entirely of hearsay evidence recorded by unidentified individuals with no first hand knowledge of the events they describe.

As researchers at the Seton Hall law School noted, in a major analysis of the CSRT documentation, entitled, “No-Hearing Hearings” (PDF, p. 34), “Outside of the CSRT process, this type of evidence is more commonly referred to as ‘rumor.’”

Although these “rumors” were sufficient for the Pentagon to regard him as a prisoner of such significance that he was put forward for a trial by Military Commission in October 2008 (which has not been revived under President Obama), it is difficult to escape the conclusion that, inside the prison, he is regarded as a threat not because of what he is supposed to have done prior to his capture, but because of his attitude in detention.

The fact that the majority of the allegations against him were made by other prisoners is largely a testament to his own resistance. As one of Guantánamo’s least compliant prisoners, he has not fought back physically, but has refused to make false confessions implicating himself or others, as so many others have done under duress (and as the judges in the District Court have been exposing in other habeas petitions).

This is in spite of the fact that, in 2003 and 2004, when Donald Rumsfeld imported a version of the CIA’s torture program to Guantánamo, he was subjected to a vast array of “enhanced interrogation techniques,” which, as Lt. Col. Wingard described them, “have included but are not limited to sleep deprivation, physical and verbal assaults, attempts at sexual humiliation through the use of female interrogators, the “frequent flier program,” the prolonged use of stress positions, the use of dogs, the use of loud music and strobe lights, and the use of extreme heat and cold.”

Even now, he is regarded as one of a handful of prisoners whose perceived influence over his fellow prisoners is such that he, and others who could not be “broken,” are separated from the general population of the prison.

As I stated at the start of this article, Judge Kollar-Kotelly’s unclassified opinion has not yet been published, so it is unclear where, in the barrage of “hearsay evidence recorded by unidentified individuals with no first hand knowledge of the events they describe,” she concluded that there was sufficient evidence to deny his petition.

Certainly, the habeas legislation is not without fault, although it has delivered victories for the prisoners in 38 out of 55 cases to date. A particularly startling example of these shortcomings was revealed last August when, in the case of a Yemeni, Adham Ali Awad, who was handed over to Afghan forces by al-Qaeda fighters in a hospital where he was a patient, Judge James Robertson denied his petition, even though he conceded that “The case against Awad is gossamer thin,” and added, “The evidence is of a kind fit only for these unique proceedings and has very little weight.”

Tom Wilner, an attorney in Washington D.C., who represented al-Kandari and the other Kuwaiti prisoners in the early days of Guantánamo, and was counsel of record in the Supreme Court cases granting the prisoners habeas corpus rights (in Rasul v. Bush in June 2004, and Boumediene v. Bush in June 2008), explained to me on Friday how it was possible for prisoners to lose their habeas petitions on the basis of “gossamer thin” evidence.

“It is important to bear in mind that the standard for habeas is quite low; it only determines whether there is probable cause for detaining someone, not that the person has done anything wrong,” Wilner told me. He also added further criticism of the Bush administration’s detention policy, as maintained by President Obama.

Despite Friday’s result, he explained, al-Kandari “has not been convicted of any wrongdoing, yet he has been imprisoned for more than eight years. The low standard for habeas might be an appropriate standard for detaining someone initially, but it is hardly an appropriate standard for holding people for years without end.”

None of this helps Fayiz al-Kandari, whose lawyers must now either appeal or attempt to arrange a repatriation program between the US and Kuwaiti governments. The first looks like a doomed enterprise, given the right-wing bent of the D.C. Circuit Court, which has recently been attempting to extend the government’s detention powers, rather than placing limits on them, and the second is hardly a better option.

In April, when discussions were proposed regarding the repatriation of al-Kandari and of the other Kuwaiti prisoner, Fawzi al-Odah, who lost his habeas petition last August, the Obama administration attempted to impose ludicrous security demands on the Kuwaiti government before talks could begin. These included demands that two men released last year after winning their habeas petitions — Khalid al-Mutairi and Fouad al-Rabiah (who, notoriously, was tortured into making false confessions that he was taught to repeat) — “have their passports taken away, be required to check in with local authorities regularly and be under surveillance by the Kuwaiti government for a period of time.”

So is Fayiz al-Kandari some sort of threat to the United States? Nothing I have ever seen or heard about him suggests that he is. When I interviewed Tom Wilner for the documentary film, “Outside the Law: Stories from Guantánamo” (which I co-directed with Polly Nash), Tom spoke about a Kuwaiti prisoner who, from childhood, had allocated half his allowance to those more needy than himself, and described him as “a wonderful guy.” I had always suspected that the prisoner he was referring to was Fayiz al-Kandari, and on Friday, I asked him if this was the case.

Tom confirmed that it was indeed Fayiz he was referring to, and also told me, “He is extremely bright, with a wonderful smile and sense of humor and an almost poetic ability to express himself. He was absolutely dedicated to helping others and fighting any injustice inflicted upon them. At the same time, he was much stronger than I could ever be in withstanding personal abuse and injustice inflicted upon himself.”

Tom also told me that Fayiz “repeatedly expressed the view that Osama bin Laden and al-Qaeda were seriously misguided, that their views were a perversion of Islam and that harming innocent civilians is a sin.”

Given Fayiz al-Kandari’s resilience, it is almost certain that he greeted Judge Kollar-Kotelly’s ruling with the strength of character identified by Tom Wilner, and with the playful dismissal of American justice with which he regularly greets his attorneys on visits to Guantánamo. His strength, however, should not blind us to the fact that, nearly nine years after his capture, there is nothing worth celebrating in the judge’s ruling — or in his continued detention.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. Cross-posted on Cageprisoners, Kuwait Times, Uruknet, Zaakirah, and New Left Project.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohamed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010), Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web (May 2010), No Escape from Guantánamo: Uighurs Lose Again in US Court (June 2010), Does Obama Really Know or Care About Who Is at Guantánamo? (June 2010), Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners (June 2010), Obama Thinks About Releasing Innocent Yemenis from Guantánamo (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), Judge Orders Release from Guantánamo of Yemeni Seized in Iran, Held in Secret CIA Prisons (July 2010), Innocent Student Finally Released from Guantánamo (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One) (July 2010), Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) (July 2010), Judge Orders Release from Guantánamo of Mentally Ill Yemeni; 2nd Judge Approves Detention of Minor Taliban Recruit (August 2010), Judge Denies Habeas Petition of Afghan Shopkeeper at Guantánamo (September 2010), Nine Years After 9/11, US Court Concedes that International Laws of War Restrict President’s Wartime Powers (September 2010).

Who Are the Remaining Prisoners in Guantánamo? Part Three: Captured Crossing from Afghanistan into Pakistan (1 of 2)

This is the third part of a nine-part series telling the stories of all the prisoners currently held in Guantánamo (174 at the time of writing). See the introduction here, and Part One, Part Two, Part Four, Part Five, Part Six and Part Seven.

This third article tells the stories of 22 prisoners seized in Pakistan after crossing from Afghanistan in December 2001, shortly after the prisoners described in Part One, and during a week-long period when around a quarter of the total number of prisoners held at Guantánamo (779 in total) were seized. Although these 185 or so men were routinely regarded as al-Qaeda members who had fled from the showdown between al-Qaeda and the US (via its Afghan allies) in the Tora Bora mountains, the truth is that almost every significant al-Qaeda member escaped from Tora Bora, that many of these men were nothing more than insignificant foot soldiers, and that many others were missionaries, humanitarian aid workers or economic migrants, caught fleeing the death and destruction in Afghanistan. Nevertheless, all were presented as al-Qaeda operatives by their Pakistani captors, who then handed them over — or sold them — to their US allies.

Around 140 of these men have been released, and the remaining prisoners are not only described in this article, but also in Part Four, where 19 more stories are told. Two of these men have won their habeas petitions, but are still held, and three others have lost their petitions (although none could remotely be described as terrorists). As before, the majority of the prisoners are Yemenis, and although many have presumably been cleared for release by President Obama’s Guantánamo Review Task Force, they are waiting to see if the President will, at any point in the future, lift the unprincipled moratorium on transfers to Yemen that he announced in January.

ISN 152 Al Khalaqi, Asim (Yemen)
As described in The Guantánamo Files, al-Khalaqi stated that he “went to Pakistan with a friend to preach with Jamaat-al-Tablighi, but decided to go to Afghanistan after discovering that there were too many Tablighi representatives in Pakistan. He explained that he and his friend were successful in their mission, but everything changed after 9/11, when his friend ‘went one day to go eat lunch and didn’t return home.’ He then met an Afghan, who advised him to leave because Arabs were being killed, and explained that this man took him in his car to the foothills where he joined a group of Arabs crossing the mountains to Pakistan and handed himself in to the army on arrival.” The US authorities allege that he undertook military training and was on the front lines at Bagram.

ISN 153 Suleiman, Fayiz (Yemen)
According to a summary of evidence at Guantánamo, Suleiman “identified himself as a trained imam in Jeddah,” and stated that various sheikhs “would frequent his facility to solicit money for other countries and to address jihad.” He added that the majority of the sheikhs’ talks “focused on Chechnya.” Although he was accused by unknown sources of training to make poisons at Kandahar airport and of being in Tora Bora, he maintained that “he had no military service and he had no desire to serve in such a capacity,” stated that he was “never trained on the use of weapons,” and “denied any connection with al-Qaeda or the Taliban.”

ISN 156 Latif, Adnan Farhan Abdul (Yemen)
In Guantánamo, Latif, who was cleared for release by a military review board in 2007, stated that he had sustained a serious head injury in an automobile accident in 1994, and had spent years trying to find affordable medical treatment. After being told about the health-care office of a Pakistani aid worker in Afghanistan who would treat him, he said that he traveled to Afghanistan in 2001, and explained that, when the US-led invasion began, he fled to the border town of Khost and then made his way into Pakistan, where he was arrested by Pakistani forces, along with about 30 other Arabic-looking men. He told his lawyer, Marc Falkoff, that he later learned that each of them had been turned over to the US military for a bounty of $5000. On July 21 this year, Latif won his habeas corpus petition, but he has still not been released. This is partly because of President Obama’s unprincipled moratorium on releasing any Yemenis from Guantánamo, even though it has been repeatedly established that Latif is suffering from schizophrenia, and has attempted to commit suicide on numerous occasions, and partly, as Lette Taylor of Human Rights Watch explained in a recent article for Global Post, because the US government “informed the court shortly after the ruling that it [was] giving ‘serious consideration’ to appealing his release.” I need hardly add that, in light of Latif’s serious mental problems, even entertaining an appeal marks out the Obama administration as fully capable of plumbing depths of cruelty that are, essentially, no different from the brutal innovations of the Bush administration.

ISN 163 Al Qadasi, Khalid (Yemen)
Little is known of al-Qadasi, because, as the authorities at Guantánamo have explained, “he claims that he is willing to spend the rest of his life in prison and has emphatically stated that he would rather die than answer questions.” The authorities have apparently ascertained that he served in the Yemeni army as a young man and traveled to Afghanistan in July 2001, and al-Qadasi has apparently stated that he “left Yemen for Pakistan to obtain medical treatment,” and has also said that he “never possessed any weapons in Afghanistan, as he was unable to fight due to his bad back.” The only evidence against him is a claim by an unidentified source that he was a mujahideen fighter who came to Tora Bora, and other claims that he stayed in a guest house in Kabul and traveled on a truck from a guest house in Jalalabad to Tora Bora.

ISN 165 Al Busayss, Said (Yemen)
Al-Busayss, who was cleared for release by a military review board under the Bush administration, apparently “traveled to Afghanistan in late 2000, attended a Taliban training camp and fought on the front lines until his unit withdrew, when he was given the option of staying or escaping. Choosing the latter, he fled to Pakistan, where he ‘surrendered his weapon and was arrested by Pakistani police,’” as I explained in The Guantánamo Files.

ISN 167 Al Raimi, Ali Yahya (Yemen)
Al-Raimi, who was cleared for release by a military review board under the Bush administration, was just 17 at the time of his capture, and has stated that he didn’t want to go to Afghanistan, because he had a job in a restaurant in Yemen, but his parents, who were living in Afghanistan, forced him to visit. He added that, once he was there, his father and brother told him that he could only return to Yemen if he agreed to attend al-Farouq (the main camp for Arabs, associated with Osama bin Laden in the years before 9/11) for two months’ training. He said that he got sick at the camp, went to a clinic in Kabul, and then returned to resume training, but added that this was four days before 9/11, after which “the training stopped and the camp was closed down.” After the US-led invasion began, he said that he was unable to contact his family, so he crossed the mountains with some friends, and was in Pakistan for a few days before he was arrested in a car by Pakistani soldiers. In the unclassified summary of evidence, one of the factors justifying his detention was, “The detainee’s country of origin does not participate in joint enforcement of the global war on terrorism.”

ISN 168 Hakimi, Adel (Hakeemy) (Tunisia)
Before traveling to Afghanistan, Hakimi had lived in Belgium, and for eight years in Italy, where, as I explained in an article in 2008, he had worked as a chef’s assistant in several hotels in Bologna. “I lived with Italians in their homes,” he told Cori Crider of Reprieve (his London-based lawyers) during a visit at Guantánamo in May 2008. “I am used to their culture. The Italians worked alongside me, they respected me, they treated me as their brother.” According to Reprieve, he traveled to Pakistan to get married and was living in Jalalabad, near his wife’s family, when the US-led invasion began in October 2001, and was then seized crossing the border like most of the other men described in this article. Although he was cleared for release from Guantánamo by a military review board under the Bush administration, both the US authorities and investigators in Europe still seem to regard him as a member of a group of Tunisians who joined al-Qaeda in Afghanistan, and who helped recruits cross from Pakistan into Afghanistan, according to a Belgian police report produced at the 2003 trial in Belgium of Sliti’s uncle, Amor Sliti, when he and Hisham Sliti (ISN 174) were sentenced in absentia. His lawyers argue that the allegations are false, and are based on testimony extracted through torture, but since last summer, there have been rumors that he and Sliti might be extradited to Belgium.

ISN 170 Masud, Sharaf (Yemen)
In Guantánamo, it was reported that Masud traveled to Afghanistan “because he heard that the Afghan leader led by Islamic ways” and that he supported the Taliban, but “did not travel to Afghanistan to fight for the Taliban … because it was Muslim versus Muslim.” He stated that he “left Kabul because the Afghans were trying to kill Arabs in the market,” took a taxi back to Jalalabad, and then joined a group of people walking to the border, where he was arrested after asking to be taken to his embassy. There are no allegations that he took part on any kind of combat — only claims that he stayed in guest houses for four months — and a ludicrous allegation by a “senior al-Qaeda lieutenant,” who “noted the detainee looked familiar and that he may be a Tunisian with connections to Italy.”

ISN 171 Alahdal, Abu Bakr (Yemen)
According to the US authorities, Alahdal “served as a fighter for the Taliban Arab forces” at Bagram, but then “contracted malaria and some other unidentified illness” and was sent to a hospital in Kabul, where he spent two months recuperating. He then made his way to Jalalabad, where he “waited to be recalled to the front lines,” but “withdrew to a village on the outskirts of Jalalabad,” from where he made his way to Pakistan, where he was turned in by villagers. In Guantánamo, he has been a long-term hunger striker. Although he only weighed 99 pounds on arrival, his weight dropped at one point to just 81 pounds, and he was force-fed daily from the end of August 2005 until the publicly-released weight records ended in December 2006, when he still weighed only 101 pounds (PDF).

ISN 174 Sliti, Hisham (Tunisia)
In January 2009, Sliti, who had lived in various countries in Europe, including Belgium and Italy, lost his habeas corpus petition, when Judge Richard Leon ruled that he was “part of or supporting Taliban or al-Qaeda forces,” based on claims made by the government that he traveled to Afghanistan as “an al-Qaeda recruit … at the expense of known al-Qaeda associates and on a false passport provided to him by the same,” that he stayed in a guest house and a mosque, and attended a training camp, which also had connections to al-Qaeda, and that he was “instrumental” in “starting a terrorist organization with close ties to al-Qaeda.” As I explained in an article at the time, “The problem with all of these allegations is that Sliti’s story actually suggests that all these conclusions are based on guilt by association. He may well have been connected with others who were involved in or interested in terrorism, but his own trajectory is that of a junkie rather than a jihadist, or, if you prefer, a tourist rather than a terrorist.” Judge Leon disregarded Sliti’s own claim that he went to Afghanistan “to kick a long-standing drug habit and to find a wife,” but it was certainly true that he had been a drug addict in Europe (where he had been imprisoned on several occasions), and he also has a worldly cynicism that is fundamentally at odds with the fanatical rigor of al-Qaeda. In a review board at Guantánamo, he explained that he only ended up in Afghanistan because he had begun attending mosques in Belgium, where the country had been portrayed as “a clean, uncorrupted country where he could study Sharia and further his religious education,” but that what he found instead was that “I didn’t care for the country. It was very hot, dusty and [the] women were ugly. The atmosphere and environment didn’t agree with me.” Despite this, he, like Adel Hakimi (ISN 168, above) faces possible extradition to Belgium, where he was sentenced in absentia in 2003.

ISN 178 Baada, Tareq (Yemen)
In Guantánamo, it was alleged that Baada, who denied being a member of al-Qaeda, trained al-Farouq, and that he and a group of fighters were then assigned to the third line, about 4 km south of the front line near Kabul. It was also alleged that, after the fall of Kabul, he fled to Tora Bora, where he was put on guard duty. One of the most persistent hunger strikers at Guantánamo, he weighed 121 pounds on arrival at the prison, but in January 2006, when he was one of a handful of hunger strikers to continue after the prison-wide strike of 2005 was largely halted, he weighed just 94 pounds (PDF). In March 2007, Sami al-Haj (the al-Jazeera cameraman released in 2008) mentioned that he was one of three prisoners who had been on hunger strike — and force-fed — for the previous year.

ISN 189 Gherebi, Salem (Libya)
Little is known of Gherebi. Initially, it was alleged that he arrived in Afghanistan in 1995, having lost most of the fingers of his right hand in an explosives accident in Tajikistan the year before, and that he was an al-Qaeda operative in Kabul, who had “reportedly” trained at an al-Qaeda training camp in 1996 (an allegation that borders on the implausible, as Osama bin Laden only returned to Afghanistan from Sudan in 1996). By 2006, the US authorities had dropped the claims about losing his fingers and being an al-Qaeda member in exchange for a new set of allegations, most of which centered on his purported links with the Libyan Islamic Fighting Group (LIFG). Deciding that his name was actually Rafdat Muhammed Faqi Aljj Saqqaf, the authorities alleged that he had lived in Pakistan in the early 1990s and then, fearing that talks between the Libyan and Pakistani governments would lead to the deportation of all Libyans from Pakistan, had moved back to Afghanistan, where he stayed in refugee camps.

ISN 195 Al Shumrani, Mohammed (Saudi Arabia)
The US authorities allege that al-Shumrani left Saudi Arabia for Afghanistan in June 2001, because he “wanted to fight in Chechnya, but was told he would need military training that could best be obtained in Afghanistan.” It is also claimed that he “stated he attended a training camp,” and then spent about five months on the front lines. In what seemed to be an attempt to beef up the allegations, it was also claimed that he “stated that while he was fighting in Afghanistan, he tried to see Osama bin Laden,” and that he “operated a hand-held two-way radio, which he used to request additional supplies” in the Tora Bora area.

ISN 197 Chekhouri, Younis (Morocco)
Chekhouri is accused of being a founder member of the Moroccan Islamic Fighting Group (or GICM, the Groupe Islamique Combattant Marocain), who had a training camp near Kabul, but he has always maintained that he traveled to Afghanistan in 2001, with his Algerian wife, after six years in Pakistan, where he had first traveled in search of work and education, and has stated that they lived on the outskirts of Kabul, working for a charity that ran a guest house and helped young Moroccan immigrants, and had no involvement whatsoever in the country’s conflicts. He has also repeatedly explained that he was profoundly disillusioned by the fighting amongst Muslims that has plagued Afghanistan’s recent history, and he has also expressed his implacable opposition to the havoc wreaked on the country by Osama bin Laden, describing him as “a crazy person,” and adding that “what he does is bad for Islam.”

ISN 200 Al Qahtani, Said (Saudi Arabia)
As I explained in The Guantánamo Files, al-Qahtani attended a training camp in Pakistan in 2000, when he also spent some time (possibly a day, possibly a week) with Abu Zubaydah, the alleged “high-value detainee,” seized in Pakistan in March 2002, for whom the CIA’s torture program was initially developed. Zubaydah’s case reveals the true horror at the heart of the “War on Terror,” because, despite being waterboarded 83 times and held in secret CIA prisons for four and a half years, he was not a senior al-Qaeda operative at all, and was, instead, the mentally troubled gatekeeper of the Khaldan training camp in Afghanistan. However, although the US authorities have steadily distanced themselves from making grand claims about Zubaydah, al-Qahtani’s brief association with him has probably counted against him in Guantanamo. In his tribunal in 2004, he said that he didn’t know that Zubaydah was allegedly involved with al-Qaeda, and asked, “just because somebody stays at someone’s house, who may not be the best person in the world, does that make the people who stayed at that house bad people?” After returning home, he spoke to an imam who explained that he should help the Taliban because, after the Soviet occupation and the civil war, “they brought peace to 95 percent of the country, except the places where the Northern Alliance were at the time. I don’t think there was anything wrong with helping to make peace after 30 years of fighting.” Returning to Afghanistan in April 2001, he served as a guard on the front lines near Kabul before fleeing to Pakistan with around 15 other people, but pointed out that he was in Afghanistan before 9/11, and insisted, “Even if you say I am right or wrong, I don’t think I did anything wrong. At the time I didn’t think I did anything wrong, and I still don’t. I didn’t do anything illegal or bad to anyone. I want you to understand this.”

ISN 219 Razak, Abdul (China)
Razak is one of 22 Uighurs (Muslims from China’s oppressed Xinjiang province), who had fled persecution in their homeland, and had ended up in Afghanistan, either because they had been thwarted in their attempts to reach Turkey or Europe, or because they nursed futile hopes of rising up against the Chinese government. 17 of the men were living in a rundown settlement in Afghanistan’s Tora Bora mountains when the US-led invasion began in October 2001, and after the settlement was destroyed in a bombing raid, they made their way to the Pakistani border, where they were seized and later sold to US forces. In The Guantánamo Files, I described Abdul Razak’s story as follows: “Yusef Abbas, who was injured in the raid, said that one man died and ‘we were covered in half a bucket of his body meat.’ After the bombing, he was taken to a hospital in Jalalabad, where Abdul Razak, a Uighur who worked at the hospital and occasionally brought food to the camp, took care of him, until ‘there was a riot in the city’ and he returned to the other Uighurs in the mountains, taking Razak with him.” Five of the Uighurs were released in Albania in May 2006, and the remaining 17 — including Razak — won their habeas corpus petitions in October 2008. However, although 12 of these men have been resettled in Bermuda, Palau and Switzerland, Abdul Razak and four others remain in Guantánamo. Having turned down offers of a new home because of fears about the suitability or security of the countries offered, they are back in legal limbo, as the US courts have ruled that they have no right to be accepted in the US, and no other offer to rehouse them has yet been made.

ISN 223 Sulayman, Abdul Rahman (Yemen)
On July 21 this year, Sulayman lost his habeas petition. In Guantánamo, he explained that a man identified by the US authorities as a known recruiter for al-Qaeda had facilitated his travel to Afghanistan, although he added that he had been recruited under false pretences and that the man “promised me that I’d be able to get married in Afghanistan. He may have had different intentions for me other than the marriage, but I didn’t know.” This was not the whole story, as Sulayman also conceded that, after arriving in Afghanistan in March 2001, he stayed in Kabul for seven months, and then, when given the opportunity to go to the front lines or the second lines or to return home, he went to the second lines because he didn’t want to fight but he also didn’t want to return home. It was there, he said, that he received some weapons training, and later, after the US-led invasion began, he fled to Pakistan in the company of men that he didn’t know, where he was seized and handed over to US forces. This was enough for him to lose his habeas petition, although it fails to demonstrate that he was a threat to the US, and what his case reveals most of all is how much of the supposed evidence was demonstrably false, and almost certainly produced by unreliable witnesses, either in Guantánamo or in other US-run prisons. These included ludicrous allegations that he was identified as a mortar instructor from a video made in the Tarnak Farms training camp in 2000 (before he arrived in Afghanistan), that he “was identified as an al-Qaeda spokesman and was part of Osama bin Laden’s entourage … during the escape from Tora Bora,” and, most alarmingly, that he was identified as a Taliban prison guard “who used torture techniques on inmates under his control.”

ISN 224 Muhammad, Abd Al Rahman (Yemen)
Muhammad, who was just 19 when he was seized, said that he initially traveled to Karachi to look for work, and stayed for three months with a Yemeni friend. He then visited the Taliban’s office in Quetta, in July or August 2001, “seeking a teaching job in Afghanistan,” but was told that there was “no work in Afghanistan.” After returning to Karachi, he decided to try again, and this time paid for a guide to take him to Kandahar, where he stayed in a madrassa for ten days. After the 9/11 attacks, he said that “the people at the madrassa” sent him to a “known Taliban house” near Kabul, and from there he eventually made his way to the Pakistani border, where he was seized. Although the US authorities came up with an impressive list of documents seized in raids, on which Muhammad’s name and details were allegedly recorded, there is no way of knowing how accurate these records are, as many featured supposed “aliases” that were notoriously generic, and others appear to record the names of prisoners that were leaked to al-Qaeda sympathizers, who duly described them in online postings as al-Qaeda members. For his part, Muhammad “denied that he received any weapons [training] during his one-month stay in Kabul.”

ISN 232 Al Odah, Fawzi (Al Awda) (Kuwait)
Al-Odah, who lost his habeas corpus petition last August, has always claimed that he took a break from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid (which he had done previously in other countries), and has also admitted that he established contact with the Taliban, as they were the government at the time, and spent one day at a Taliban-controlled training camp. He has also stated that, after the US-led invasion, he was sent by a Taliban representative to a safer location outside Kabul, and, from there, traveled to Jalalabad, where he stayed with another family, who gave him an AK-47 assault rifle to protect himself. He then joined other people crossing the mountains to Pakistan, where he handed himself in to the border guards, and was subsequently handed over — or sold — to US forces. However, in what I described as “another shallow victory for the government,” Judge Colleen Kollar-Kotelly denied his habeas petition because she agreed with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan,” basing her ruling, as I described it, “on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were ‘significant reasons why the Government’s proffered evidence may not be accurate or authentic.’” Al-Odah appealed the ruling, but his appeal was denied by the D.C. Circuit Court in June this year. The result, as I also explained, is that, nine years after the 9/11 attacks, “the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.”

ISN 233 Salih, Abdul Al Razzaq (Yemen)
Salih is accused of training at al-Farouq, and was also “identified”, by an unknown source, as “a jihadist” in Tora Bora, although he maintained that he traveled to Afghanistan before the 9/11 attacks because he “felt compelled to go to Afghanistan to teach the Koran to the Afghanis.” He added that “he was not formally trained in the Koran, but wanted to go just recite what he could.” In reports elsewhere in his Unclassified Summary of Evidence, he reported that a particular sheikh had told him that “it was forbidden to fight for the Taliban,” and that “he doesn’t like violence and was not fighting in Afghanistan, but was seeking a job teaching in a mosque.” In Guantánamo, Salih took part in the mass hunger strike in 2005. Although he weighed a comfortable 160 pounds on arrival at the prison, his weight dropped on two occasions, in December 2005 and January 2006, to just 110 pounds (PDF).

ISN 235 Jarabh, Saeed (Yemen)
The story of Saeed Jarabh is particularly unclear. In his Combatant Status Review Tribunal in 2004, he stated that he traveled to Afghanistan in August or September 2001 to teach the Koran (and also in the hope of finding gold to trade), and refuted a claim that he trained for a week at a camp identified as Abu Abaida by stating, “This was not military training; it was simply shooting for proficiency with friends.” He also denied allegations that he participated in military operations against the US-led coalition, and was present in Tora Bora, stating that he “was not in Tora Bora” and was “captured under false pretences in Pakistan by the Pakistanis.” He added that he “had made a decision to leave Afghanistan long before the war started,” but that “People in Afghanistan lied to him and told him they would help him go home but [instead] turned him over to Americans.” Whether or not this story was true, it was certainly more credible than other, unsubstantiated allegations made by unidentified sources, including a ludicrous claim that he “was a suicide bomber who had sworn bayat (an oath of allegiance) to Osama bin Laden.”

ISN 238 Hadjarab, Nabil (Algeria-France)
In 2001, Nabil Hadjarab, a 22-year Algerian who had been shuttled between France and Algeria throughout his childhood as his family disintegrated around him, was persuaded to travel to Afghanistan by someone who took advantage of his fears about being caught without papers as he applied for formal French residency. After living in Kabul, he then moved to the eastern city of Jalalabad, but as Afghanistan descended into chaos following the US-led invasion in October 2001 and he tried to flee across the mountains to Pakistan, he was wounded by a bomb and taken to a hospital in Jalalabad, where he was sold to US forces. As I explained in a recent article, Hadjarab was cleared for release from Guantánamo under the Bush administration, but was not freed because of long-standing fears about returning him to Algeria, and also because of inertia on the part of the French government, which has refused to offer him a new home, even though he spent much of his childhood in France and has close family there. Now, however, he is at risk of being forcibly repatriated to Algeria after the US Supreme Court refused to intervene to prevent him and four other Algerian prisoners from being transferred against their will, as happened in July with another Algerian, Abdul Aziz Naji.

Note: See Part Four of this series for the stories of the other four Algerians, who, like Nabil Hadjarab, were also cleared for release under President Bush, and have been cleared for release by President Obama’s Guantánamo Review Task Force. They are: Motai Saib (ISN 288), Ahmed Belbacha (ISN 290), Djamel Ameziane (ISN 310) and Farhi Saeed bin Mohammed (ISN 311), who was also cleared for release by the US District Court in Washington D.C., when he won his habeas corpus petition (in November 2009).

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Public Record, Eurasia Review, UruknetBlog from Middle East and New Left Project.

Who Are the Two Guantánamo Prisoners Freed in Germany?

On Thursday, two Guantánamo prisoners were released, to start new lives in Germany, bringing the prison’s population to 174. Announcing their arrival, Interior Minister Thomas de Maizière stated that, by taking them in, Germany had “made its humanitarian contribution to closing the detention center.” He also noted that the two men had asked for their identities to be withheld from the public, but one man’s identity was revealed when the London-based legal action charity Reprieve issued a press release congratulating the government on offering a new home to their Palestinian client Ayman al-Shurafa (and his arrival was then confirmed by a spokesman for the Hamburg government).

The identity of the second — Mahmoud Salim al-Ali, a Syrian — was then revealed by Der Spiegel, which stated that he had arrived in the state of Rhineland-Palatinate in central-western Germany. In fact, the identities of both men should not have come as a surprise, as Der Spiegel devoted a major article to their stories back in July, after the German government had confirmed that it would take two prisoners from Guantánamo.

The release is good news not only for Ayman al-Shurafa and Mahmoud al-Ali, but also for the many campaigners and commentators — myself included — who have been trying to keep Guantánamo on the mainstream media’s radar. Although President Obama briefly discussed Guantánamo on September 9, in his first press conference since May, apologizing for failing to meet his self-imposed deadline of January 2010 for the prison’s closure, progress towards belatedly fulfilling his promise has been horribly slow this year. Although the President’s interagency Guantánamo Review Task Force recommended that over half of the remaining prisoners should be released, just 21 of the 111 prisoners cleared for release at the start of the year have been freed in the last nine months, and 90 cleared men still remain.

Dozens of these men — like Mahmoud al-Ali — cannot be repatriated because they face the risk of torture in their home countries, and must wait for third countries to rehouse them (a difficult task, given that the Obama administration, Congress and the judiciary have all made sure that the United States will not take any of them), and one, like Ayman al-Shurafa, is a stateless Palestinian. However, 58 others are Yemenis, who could be sent home tomorrow were it not for an indefensible moratorium on releasing any Yemenis that was issued by President Obama in January, following hysterical overreaction to the news that the failed Christmas day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen.

Clearly, the President has no chance of fulfilling his promise to close Guantánamo until this moratorium is lifted, and those who wish to see the prison closed must do more to challenge this cynical knee-jerk ban which effectively tars all Yemenis as terrorist sympathizers. For now, however, the German government must be congratulated for offering new homes to Ayman al-Shurafa and Mahmoud al-Ali, and for bringing their long and unjust imprisonment to an end.

Ayman al-Shurafa, a stateless Palestinian

Ayman al-Shurafa, who is now 34 years old, was cleared for release by a military review board in 2007, but remained at Guantánamo because of the particular problems facing the handful of Palestinians held in the prison, who are — or were — literally stateless. In al-Shurafa’s case, although his family is from Gaza, his parents settled in Saudi Arabia with their four children when he was a young child. He spent most of his life in Saudi Arabia, where his family still lives, but because he does not have a Saudi passport, the Saudi government refused to press the US authorities for his repatriation. Instead, he holds documents issued by the Jordanian government (as part of his family’s long search for refuge), which are suitable only for travel purposes, and until Germany agreed to accept him, he was, therefore, literally a man without a home.

Around ten years ago, al-Shurafa traveled to Gaza to enroll in a Palestinian university to finish a business degree that he had started in Saudi Arabia. However, after the intifada broke out, he feared for his life and decided that he had to leave. He returned to Saudi Arabia, but, as with all Saudi residents, discovered that his educational opportunities were more limited than those available to Saudi citizens. It was then that, like many other young men, he found himself taking poor advice from a Saudi sheikh who stated that he needed to be “prepared” to defend Muslims from those oppressing them — a religious duty known as e’dad, which is conceptually distinct from jihad or any participation in combat.

As a result, he traveled to Afghanistan in summer 2001, but, like many young men recruited by religious figures, he was unaware that the Taliban’s enemies were other Muslims. Throughout his detention, he maintained that, although he was in Afghanistan, he never took up arms against the Northern Alliance — or against the United States after the US-led invasion of October 2001. In meetings at Guantánamo with his lawyers, he explained that “he hadn’t the faintest idea of what he was getting himself into; he knew nothing about the Taliban’s long inter-Muslim struggle with the Northern Alliance, and had no knowledge whatsoever of al-Qaeda.”

In 2007, a military review board agreed with this assessment, but although al-Shurafa was cleared for release, and was compliant throughout his detention, he still ended up held in isolation in a cell in Camp 6 for 22 to 23 hours a day. Throughout his life, he has suffered from vitiligo, a painful skin complaint, and his permanent isolation from sunlight made his skin condition flare up horribly, causing maddening discomfort, as well as permanent skin damage. According to his lawyers, although he was well regarded by both the guards and by his fellow prisoners, leading prayers in his cell block, he was deeply concerned that he would never see his elderly mother again, and also showed signs of depression, asking the authorities for medication to “let the days go by without feeling anything.”

Mahmoud Salim al-Ali, a Syrian seized by an Afghan warlord

As Der Spiegel explained in July, Mahmoud Salim al-Ali, who is 36 years old, had been living in Kuwait before he made an ill-fated trip to Afghanistan in October 2001. His last job had been in a fruit and vegetable market, but he also had “experience working in the service sector and in industry, as a salesperson in the Sultan Shopping Center and with the Al-Fahad Aluminum & Glass Works.”

However, in late September 2001, he traveled to Afghanistan, via Syria and Iran, apparently because, as the US authorities alleged at Guantánamo, he “had a desire to join the jihad after viewing videos depicting the situation in Afghanistan, Bosnia and Chechnya.” Nevertheless, as Der Spiegel also explained:

[H]e never received any military training or saw any combat. After a few days in Kabul, al-Ali contracted a serious case of diarrhea, for which he was treated in a hospital. He then spent the night in the house of a doctor. By the next day, as he was fleeing from the Northern Alliance, which was fighting the Taliban, his big adventure was over. Al-Ali and his companions were captured by an Afghan warlord and robbed. The bandits took his money, his wedding ring and his watch, and he was later turned over to the Americans.

New life in Germany

For both these men, life in Germany promises to present them with an excellent opportunity to rebuild their lives. As Der Spiegel explained in July, Mahmoud al-Ali “has a wife and a 10-year-old daughter living in Syria who apparently want to come to Germany to live with him, to which the state politicians dealing with the case have no objections,” and Ayman al-Shurafa, whose immediate physical and psychological needs appear to be more acute, is already receiving attention in a medical clinic, where, as Der Spiegel reported on Thursday, “he will be given an extensive check-up over the next few days.” Hamburg government officials stated that “the goal was to help reintegrate the former prisoner into society, with the hope that he will ultimately become self-sufficient.”

Accepting these two men has not been without problems for the German authorities. There was fierce opposition from conservative ministers, for example, and, in response, plans for the state of Brandenburg to take a third prisoner, Mohammed Tahamuttan, the last Palestinian in Guantánamo, were quietly dropped. In July, Rainer Speer, the state’s interior minister, told Der Spiegel, “We were up to the task,” and the newspaper also noted that “the Interior Ministry task force charged with the issue had apparently concluded that accepting all three candidates was fundamentally justifiable.” However, Der Spiegel speculated that the rejection of Tahamuttan was “probably intended primarily to send a political message at home in Germany, where de Maizière felt that he had to show the many members of his party who had opposed reaching an agreement with the United States on Guantánamo that he was not blindly obeying the Americans.”

Noticeably, the government in Berlin also refused to proceed with the resettlement of Ayman al-Shurafa and Mahmoud al-Ali without written guarantees from the Obama administration. As Der Spiegel noted, Germany was “probably the only ally to have done so.” According to a joint declaration signed by the two countries, “The United States will not release any inmates if this could jeopardize the security of the United States or our friends and allies.” Der Spiegel added that “the Germans also have it in writing that the US government would not permit any individuals deemed a threat to the national security of the United States to ‘enter the country,’” explaining that what this means is that the men being released and sent to Germany “are not dangerous and could even enter the United States as tourists.”

As Der Spiegel also explained, this was “a delayed victory for Wolfgang Schäuble who, as interior minister in Berlin’s former grand coalition government, refused to accept Guantánamo inmates because, as he noted, they would not even be given a tourist visa for the United States.”

Will other countries now help?

While this will send shockwaves though the more paranoid parts of the US establishment (and should, if there is any justice, lead to calls to revoke the various bans on bringing cleared prisoners to live in the US), the impact of Germany’s acceptance of two prisoners should be most marked in Europe, where hopes for rehousing other cleared prisoners who cannot be repatriated are most sharply focused.

Although ten other countries in Europe (Albania, Belgium, Bulgaria, France, Hungary, Ireland, Portugal, Slovakia, Spain and Switzerland) have taken in 23 prisoners over the last 16 months, who had no prior connection to their new homes (and 15 others have been settled in Bermuda, Cape Verde, Georgia, Latvia and Palau), other countries have failed to be swayed by the entreaties of Daniel Fried, President Obama’s Special Envoy to Guantánamo.

Ambassador Fried’s thankless task has been to persuade other countries to overlook US hypocrisy regarding the resettlement of prisoners, and to help President Obama close Guantánamo by taking in men like Ayman al-Shurafa and Mahmoud al-Ali. However, despite his success to date, certain prominent countries in western Europe — Austria, Denmark, Finland, the Netherlands, Norway, Sweden and the UK — have so far refused to help, even though, in some cases, persuasive arguments can be made that they should be involved as part of a tacit acknowledgment of their involvement in the crimes committed in the “War on Terror.”

In Norway’s case, this arose because of the involvement of AkerKvaerner, the country’s largest commercial company, which, as filmmaker and journalist Erling Borgen has noted, “had 700 people working on the Guantánamo base,” providing logistical support that included “fueling the rendition flights.” In Sweden’s case, the complicity centers on the government’s involvement, in December 2001, in the CIA-directed kidnap and rendition to torture in Egypt of two Egyptian asylum seekers, Ahmed Agiza and Mohammed Alzery. In Britain’s case, the true scale of the complicity of the Bush administration’s closest ally has not yet been revealed, but enough has been exposed to indicate that providing new homes for a handful of cleared Guantánamo prisoners who cannot be repatriated is the least that the government should do.

The British government’s complicity includes former foreign secretary Jack Straw’s recently-revealed support for Guantánamo and former Prime Minister Tony Blair’s interference in plans to provide consular access to a British citizen seized in Zambia (Martin Mubanga). It also includes involvement in the kidnap and rendition of two British residents in the Gambia (Bisher al-Rawi and Jamil El-Banna), its knowledge of the torture by US agents in Pakistan of British resident Binyam Mohamed, who was later sent to be tortured in Morocco (also with British knowledge), and the repeated visits made by British agents to British nationals and residents while they were held in Pakistan, and in US custody in Afghanistan and Guantánamo, even though it was apparent that the conditions in which they were being held did not meet internationally recognized standards of humane treatment.

Although Prime Minister David Cameron has announced an inquiry into British complicity in torture abroad, one way in which the government could atone for its deep involvement in the “War on Terror” would be to step back from the outrageous position taken by the previous government — that, in securing the return of nine British nationals and five British residents, the UK had “done its bit,” as foreign secretary David Miliband claimed in January 2009 — and accept that this was, in fact, nothing more than what was required.

The new coalition government already faces questions about why it cannot secure the return of Shaker Aamer, the last British resident in Guantánamo, who was cleared for release in 2007 but is still held, and is also under pressure to explain why it will not accept Ahmed Belbacha, an Algerian who lived and worked in the UK between 1999 and 2001, who was also cleared for release in 2007, but is terrified of returning to Algeria. Perhaps it might now be worth asking if the British government will take up where Germany left off, and also offer a new home to Mohammed Tahamuttan, the Palestinian who is still waiting for someone to free him from Guantánamo.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “Two Freed Prisoners in Germany.” Cross-posted on The Public Record, Cageprisoners and New Left Project.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 64 prisoners released from February 2009 to July 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini); July 2010 — 1 Algerian, 1 Syrian to Cape Verde, 1 Uzbek to Latvia, 1 unidentified Afghan to Spain.

Omar Khadr is 24 Today: He Has Lost One-Third of His Life in US Custody

Today, please spare a thought for Omar Khadr, the only Canadian citizen in Guantánamo, who was seized in Afghanistan on July 27, 2002, when he was just 15 years old. Omar is 24 years old today, and has grown, physically, into a man during the eight years and two months he has spent in US custody, first at Bagram airbase in Afghanistan, and, since October 2002, at Guantánamo. At heart, however, he remains a child, whose youth has been stolen from him by the US authorities responsible for detaining him, and by the Canadian government, which has refused to demand his return.

Today, however, I don’t want you to reflect particularly on the abuse to which he has been subjected throughout his detention, or on the US government’s shameful refusal to rehabilitate him, rather than punishing him, as required by its obligations under the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which includes the agreement that all States Parties who ratify the Protocol “[r]ecogniz[e] the special needs of those children who are particularly vulnerable to recruitment or use in hostilities,” and are “[c]onvinced of the need [for] the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

Today, I don’t want you to reflect particularly on the Canadian government’s shameful refusal to demand his return to his homeland, despite severe criticism by the Canadian courts, or on the Obama administration’s shameful refusal to cancel his scheduled trial by Military Commission, on war crimes charges that — even if the allegations are true — are not war crimes at all, as Lt. Col. David Frakt, the military defense attorney for another former child at Guantánamo, Mohamed Jawad (who was released last August), has explained.

Instead, I want you to think only about Omar, and to reflect on how, although he now looks like a man, he has in fact been thoroughly deprived of the formative experiences that shape a young man — of the opportunities to learn, to experience life, to forge new friendships with those of his age.

On Saturday, I attended “Eid Without Aafia,” an event to raise awareness for the plight of Dr. Aafia Siddiqui, the Pakistani neuroscientist facing a life sentence in the United States next week, after a trial that failed to address claims that she was held and abused in US custody for over five years as a CIA “ghost prisoner.” As part of the event, I was honored to be asked to conduct a discussion about Guantánamo, and conditions for prisoners held in the “War on Terror,” with former Guantánamo prisoners Shafiq Rasul and Ruhal Ahmed.

While we were discussing the treatment of children in US custody — with reference to two of Aafia Siddiqui’s children (who also disappeared without explanation for up to seven years) — Ruhal and Shafiq spoke about Omar, whom they knew from Guantánamo, and both men pointed out how disturbing it was that he was held, how disturbing his wounds were, and how, although he was growing up physically while they knew him, he remained a child, and his life — and the lives of the other 21 juveniles held at Guantánamo throughout its history — had been stolen from him far more severely than was the case with other prisoners.

No country that dares to call itself civilized should tolerate holding anyone as a prisoner in an experimental prison whose rationale — as formulated by the Bush administration — was to establish a policy of indefinite detention, and to facilitate coercive interrogations outside the scrutiny of the US courts. To do this to a child is unconscionable, and the very least the Obama administration, and the government of Stephen Harper, should do before Omar’s trial by Military Commission resumes on October 18, is to arrange for him to be returned to Canada, to begin filling in the blanks in those eight long and lost years of his life.

POSTSCRIPT: To be strictly accurate, I realize that this article is a day late, as Omar’s date of birth is actually September 19, 1986, but I hope my slight calendrical confusion can be excused.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on PULSE, Uruknet, and New Left Project.

David Frakt, Stephen Jones, Michael Hayden and Marc Thiessen Discuss Guantánamo and “Enemy Combatants” (Part Two)

This is the second (and final) part of the transcript of an Intelligence Squared U.S. debate, “Treat terrorists like enemy combatants, not criminals,” held in New York on September 14. The first part is here. The motion was proposed by former CIA director Gen. Michael Hayden and torture apologist Marc Thiessen, and opposed by Lt. Col. David Frakt, law professor, expert in the laws of war and the former military defense attorney for two Guantánamo prisoners, and Stephen Jones, the attorney who defended Oklahoma bomber — and U.S. terrorist — Timothy McVeigh.

As I explained in the first part, I’m delighted to note that, when the audience voted before the debate, 33 percent supported the motion, 32 percent opposed it, and 35 percent were undecided, but that, by the end of the evening, Lt. Col. Frakt and Stephen Jones had swayed a larger number of undecided voters, so that 39 percent supported the motion, 55 percent opposed it, and 6 percent were undecided. If only lawmakers, media pundits and the wider U.S. public could be persuaded in a similar manner …

As I also explained, I have presented the transcript largely as it appears on the Intelligence Squared website, but on occasion I have added my own editorial comments, addressing points that were not picked up on by the speakers, or (largely in Thiessen’s case) comments that were clear distortions of the truth.

“Treat terrorists like enemy combatants, not criminals”
An Intelligence Squared U.S. Debate, New York, September 14, 2010

John Donvan: I’d like to go to the audience for your questions now. […]

Male Speaker: Yes, I think that something has been left somewhat clouded in the discussion, and that is that we’ve debated here and heard a lot of pros and cons about the way that they’re treated as criminals versus enemy combatants. What I haven’t heard is a clear definition of what the treatment should be when it is declared that they are enemy combatants. In other words, are we looking at recourse under military commissions? Are we looking at a suspension of some of those concerns because of national security? I think for a lot of people, we’re uneasy as to the definition behind enemy combatant and the set of prerogatives that would set in if that were to prevail, and we are leaving an open mind on that. So perhaps people can clarify that for us?

John Donvan: Thank you. Marc Thiessen, I’d like to go to Marc because you just wrote a whole book about this.

Marc Thiessen: Enemy combatants: When you capture someone who’s a member of al-Qaeda or the Taliban or who tries to set his underwear on fire on a Detroit airplane and blow up a plane over Detroit that could’ve killed hundreds of people — our position is that that’s an enemy combatant. And that person, when you take him into custody, the first words out of your mouth are not, you have the right to remain silent. Because this is the problem with the difference between our approaches and practice, is that they believe, because they are lawyers and this is the world they live in, that the purpose of interrogation is to obtain evidence for a criminal trial.

The criminal trial is a third order of interest for those who are involved with protecting the country. The first job is to get intelligence to stop another terrorist attack. So when, for example, the Christmas Day bomber is questioned for 50 minutes and then told he has the right to remain silent, you’re not going to get, even if he’s being incredibly cooperative, in 50 minutes you could not exhaust all the information. But the thing is that if you were trying to — if you take the law enforcement approach to interrogation, patience is a virtue. You are trying to get evidence and you can take as much time as you want, build a relationship with the guy, you try to coerce them in an interview, try to co-opt them into giving you information, fool them into giving information. If you are trying to stop a terrorist attack, patience is deadly.

This guy — when the Christmas Day bomber was captured, he was supposed to be vaporized on that plane. As soon as al-Qaeda found out that he was alive and in U.S. custody, they started covering his tracks. They started shutting down e-mail addresses, they started shutting down camps where he was training, they started hiding operatives who he knows about, they started hiding safe houses and closing them down. So he takes three weeks to do — and he’s even trained in interrogation resistance — to buy time and use the legal system in order to buy his [unintelligible] fellows on the outside time. We need to get that information quickly.

David Frakt: Okay. I’d like to respond to that.

John Donvan: I just wanted David Frakt to respond to this.

Male Speaker: A little bit of an unclarity and that is that even after a lawyer is assigned, I believe that interrogation can proceed. Isn’t that correct?

Marc Thiessen: But he doesn’t have to answer any questions.  Once he has a lawyer, he’s not going to answer any questions.

Male Speaker: I will tell you there were many people who did cooperate —

Marc Thiessen: No, first of all, I will tell you who says this: Eric Holder. Eric Holder, after John Walker Lindh was captured in Afghanistan and brought over here, Eric Holder was being interviewed on CNN in 2002 and they said, can they get tough with him in the interrogation and he said, well he’s not going to tell you anything now that he has a lawyer and is in America.

Stephen Jones: Speaking from experience, people with lawyers confess all the time. They confess even though they’ve been given their Miranda rights. So maybe you think Osama bin Laden, to use the most extreme example, is not familiar with the rule of Miranda? I mean, most of those of us who practice law daily in the courts of law know that many police detectives are just as skilled as the people you want to use enhanced detection, that the purpose of interrogation is not prosecution, it’s to gather evidence frequently on an intelligence basis whether it’s financial crimes or drug crimes, and that many thousands of defendants who are told they have the right to remain silent, spill their guts.

David Frakt: I’d like to get back to the question which was a good one and given that this was a motion that was proposed by our opponents, I thought that they would try to define it. But actually what we’re doing is constantly shifting back and forth because they say, well, we’re at war, so it’s enemy combatants. We acknowledge in the active battlefield and active theater of conflict in Iraq, in Afghanistan, those who are actively fighting against us are enemy combatants and can be treated under the laws of war. Now where it gets murky is when we’re talking about people here in the United States. And the prior administration’s policies were to treat Americans, American citizens as enemy combatants, American citizens were locked up in military prisons for years and before that case could ever go to the Supreme Court, they decided to drop it. So we have to differentiate between an active battlefield and what’s going on domestically.

Now Mr. Thiessen says that membership, if we pick up someone who’s a member of Taliban or al-Qaeda — I mean, these people do not carry membership cards. And we also have to distinguish between al-Qaeda and Taliban. The Taliban is a fighting force in Afghanistan and Pakistan. They just want us to leave. They are not terrorists. They’re not launching international terrorist attacks. Al-Qaeda is. I would argue that the Taliban was essentially the lawful military government and military force of Afghanistan at the time we attacked and therefore was entitled to Geneva Convention status protection as prisoners of war. But we did not afford them that.

Another thing that’s important to talk about is when we say terrorist, what they’re really talking about are suspected terrorists, people that they believe may be terrorists. Now, if someone tries to light their underwear on fire in a plane, yes, you have a pretty good indication that they’re a terrorist. But it’s usually not that clear cut. It’s usually based on some intelligence from some source or method that we’re not allowed to know about that they suspect someone. And in that case, to simply lock that person up, incommunicado potentially for years, if I’m understanding what Marc is proposing, is problematic. And we have gotten a lot of the wrong people.

Now, yes, if we interrogate people — yes, people have information. We may eventually get it.  But why limit it to terrorists? Why don’t we do that to every single person that’s suspected of any crime? Why not drug traffickers because —

John Donvan: We’ll come back to that because we’re going to keep going in circles on the same territory, and I want to move it. And I bet we do come back to it. In uniform, the third row. I believe you’re — are you part of the West Point contingent?

Female Speaker: I am, sir. I’m a judge advocate for the U.S. Army, currently assigned to the United States Military Academy, the department of law. I do teach Constitutional and military law. We have some work that put us here this evening. Let me clarify first: this comes in my personal capacity. I’m asking this question not anything to do with the army or West Point. I clearly acknowledge that you are more intelligent that I, that you have the access to information I never will. My question comes in the fact that I’m assuming, aside from you, sir, that maybe you’ve never been deployed.

Marc Thiessen: No, I have not.

Female Speaker: I’ve been to Iraq. I’ve been to Afghanistan. Without fail, every time I interacted with an Iraqi or an Afghan, their single question to me was this: How do you explain Guantánamo Bay? Let me ask you my question. My question is not whether we should treat them like enemy combatants or criminals, but whichever we decide, there are always consequences to a decision. And if you take it out and extract what — the implication this causes for those of us who are fighting these wars, who do know we are a nation at war, so in the next year as I leave for my third deployment, possibly, when I get out there, or as I’m teaching my cadets, this is the way we do things because we’re America, how do I justify us giving it the moral high ground?

John Donvan: And do you think we are?

Female Speaker: Absolutely. We can’t go around and champion ourselves as the land of the free and the just —

John Donvan: Michael Hayden.

Michael Hayden: Yeah. First of all, captain, thank you for your service. I’m puzzled. I understand the image of Guantánamo. And we had serious questions inside the Bush administration about Guantánamo. As David suggested, we took about two-thirds of the prison population out of Guantánamo, not as David suggested, because we thought they were innocent. We actually transferred them to third countries actually to kind of home of record with the assumption that they would then be held there or watched there so that they would no longer be a danger, all right? I guess if you believe we are at war and that these are enemy combatants, we’ve got to put them somewhere. I’m not wedded to Guantánamo. I understand the image issue.  But our right to detain them, I think, is unarguable under the laws of armed conflict. And —

Female Speaker: — to be held for eight years without trial or with evidence against you?

Michael Hayden: No. Captain, I’m sorry. You’re the lawyer, and I’m not, all right? But nowhere does Geneva require us to try enemy combatants. I sat with — in my last capacity as head of CIA, I had multiple visits from the president of the International Red Cross as we were trying to get closer to some of the things they were suggesting to us. He never suggested we had to try anybody. They did have — as David knows, they have CSRTs, combatant status review tribunals, which is what happens within the military. It is the tradition of the military to ensure through this process, due process, that the individual you have is indeed the individual you believe them to be. I just don’t understand what of this enemy is unlawful. And the unlawful combatant or unprivileged belligerent is the new phraseology. What, does that give them rights that 6 million other prisoners of war we’ve held as a nation have not had? [Editor’s note: Gen. Hayden failed to acknowledge that the Combatant Status review tribunals at Guantánamo were dismissed, in detail, as a sham process designed to rubber-stamp the prisoners’ prior designation as “enemy combatants,” as Lt. Col.Stephen Abraham, who played a major part in the process, explained in 2007, in two court submissions, and in an interview here in 2008].

John Donvan: Marc Thiessen, do you want to join your partner on this one, because I think —

Marc Thiessen: I do want to, because I — I thank you also for your service, but I think my answer to you is what you say is you should defend the other people in uniform who serve proudly at Guantánamo and keep this country safe. The fact is that most of those people are asking those questions because of misstatements, mistruths and lies that have been spread about Guantánamo Bay.

John Donvan: You mean the Iraqis are misinformed.

Marc Thiessen: Iraqis, people around the world because people in — these allegations go out there and, as my old boss, Donald Rumsfeld used to say, the truth goes around the world 30 times before — lies go around the world 30 times before troops get their boots off. Every investigation into conduct at Guantánamo Bay has found these allegations of widespread abuse are false. Brigadier generals Schmidt and Furlow did a careful investigation [PDF]. No, quote, no evidence of torture or inhumane treatment at JCF Guantánamo. They’ve made the inspector general A.T. Church, who I interviewed for my book, and who said he expected to find widespread abuse at Guantánamo said that when he investigated, conducted hundreds of interviews, interviewed detainees, interviewed everybody who had been there. He said we can confidently state, based upon this investigation [PDF], we found nothing that would any way substantiate detainees’ allegations of torture or violent physical abuse at Guantánamo. Now, I’ll tell you something. We are also hearing from the other side that people there are the poor sheep herders and goat herders who have been wrapped up and taken to Guantánamo. The combat leadership of the Taliban today is made up of Guantánamo alumni. Just last week in Yemen, the Yemenis arrested a Guantánamo alumnus who was joining al-Qaeda in the Arabian peninsula.  And the man who is one of the leaders of al-Qaeda in the Arabian Peninsula who sent the Christmas day bomber is a former Guantánamo inmate [Editor’s note: This man, a Saudi, was released by President Bush as part of a diplomatic deal with the Saudi government, against the advice of his own intelligence services].

These are dangerous, dangerous people. And even the Obama administration’s review found 95 percent of the people who are there right now are either leaders or fighters for al-Qaeda and the Taliban. [Editor’s Note: This description tends to skew the Guantánamo Review Task Force’s findings. What the Task Force stated was that roughly 10 percent of the prisoners (24 in total) were “Leaders, operatives, and facilitators involved in terrorist plots against US targets,” that roughly 20 percent (48 prisoners in total) were identified as “Others with significant organizational roles within al-Qaeda or associated terrorist organizations,” that less than 10 percent were “Taliban leaders and members of anti-Coalition groups,” that 5 percent did not fit into any category, and that the rest — over 55 percent — were “Low-level foreign fighters.” I should also add that the Task Force’s analysis does not correspond with rulings made in the District Court in Washington D.C. on the prisoners’ habeas corpus petitions, where, to date, 38 out of 55 cases have been won by the prisoners, on some occasions evidently refuting the Task Force’s findings].

John Donvan: Marc, thank you.

John Donvan: David Frakt, do you want to respond? But I sort of feel the captain did your work for you on that question.

David Frakt: Well, I want to respond to a specific point made by Marc about these reports, investigations into detainee abuse at Guantánamo and the claim that they searched, and they didn’t find anything. He referenced the Church report, the Schmidt-Furlow report.

When I was representing Mohammed Jawad, a teenage boy from Afghanistan at Guantánamo, a prosecutor by the name of Lieutenant Colonel Darrel Vandeveld turned over some discovery materials to me that showed that my then, at that point, 16 or 17-year-old client had been subjected to what was called the frequent flyer sleep deprivation program. And according to the Schmidt-Furlow report, they had discovered that there had been a frequent flyer sleep deprivation program. And during this program, detainees were moved, and in the case of my client, 112 times from cell to cell during a two-week period. He was moved constantly back and forth in an effort to deprive him of sleep.

According to the Schmidt-Furlow report, this program had been stopped after a complaint by the FBI, it had been stopped in March of 2004. The only problem with that was that my client had been subjected to the program in May of 2004. And so I asked Colonel Vandeveld to continue digging, and he found additional records that showed that this program continued for at least another year. And dozens of other people were subjected to it. In fact, we had the person who ran the program. There was a major, who was an intelligence officer in the army, who came to testify at Guantánamo in the hearing in which I was representing a detainee and said this was standard operating procedure. The generals knew about it. Everybody was vetted and approved. So these investigations were whitewashes. They missed widespread abuses. I tried to bring this to the attention of the Department of Defense. I filed a report of a violation of the Law of Armed Conflict, as is my duty to do as a military officer. What did they do? Nothing, no follow-up investigation, I was never contacted.

John Donvan: So we have a very basic disagreement about what we think is happening inside the walls of Guantánamo. You say that basically there have been very few undocumented violations and David is saying that these are whitewashed, that there’s reports that say that.

Marc Thiessen: I think that’s a shocking thing to say about Admiral Church and those people who are — you know, people who wore our uniform with honor. Hold on, no, you talked, now let me — This frequent flier program you referred to, where for someone who’s moved once every four hours roughly, two to four hours, what do you think these detainees in Guantánamo do all day? They’re not busting rocks. They’re not making license plates. They sleep. They read the Koran. They play foosball. They play soccer. They eat whenever they want, sleep whenever they want. This is not torture. There is frequent flier. You may not like it. But I’ll tell you something, people — interrogation, interrogation techniques, even interrogation techniques under the Geneva Convention people would find shocking if you’re not familiar with interrogation — interrogation is not supposed to be pleasant. And you have in the case of some of these people who are at Guantánamo, people who are senior al-Qaeda leaders, senior Taliban leaders who have intelligence about the possibility of planned attacks against the United States and they have the responsibility to get them within the rules of law, and they did it. And these investigations were conducted, they were open, and they found no evidence of widespread abuse.

David Frakt: And that’s because the senior al-Qaeda leaders were locked up in secret CIA ghost prisons in Eastern European countries and in Thailand and places that we were not allowed to know about, that’s where the worst abuses went on, but there were plenty of horrific abuses at Guantánamo —

John Donvan: Michael Hayden.

Michael Hayden: I’ll come back with a debate on interrogation techniques, just sign me up. To summarize the last statement, I believe the American armed forces are competent and capable of holding enemy combatants as prisoners of war consistent with the laws of armed conflict. Discussion about that point or distraction from the basic question we have in front of us today.

John Donvan: Another question from the audience? […]

Male Speaker: Kayvon Afshari, CBS News. I do want to come back to David Frakt’s fundamental point, and I’d like to get a response from Marc in particular. A lot of the guilt or innocence of these suspected enemy combatants is a lot more nebulous than that of Abdulmutallab, so I just want to know on a very practical level if we don’t go through the criminal justice system, how do we know if they are terrorists?

Marc Thiessen: First of all, it’s not about guilt. You don’t have to prove guilt. These are not criminal defendants. You have to have a reasonable belief that these people were captured in the war and that they are members of al-Qaeda or the Taliban and were conducting operations against us. The fact is, we have detained in the War on Terror well over 100,000 people. Only 800 made it to Guantánamo. Only 100 made it into the CIA program. So these are — we’re not just picking people up off the street and throwing them in Guantánamo. Were there some people that were sent there by accident, that we made a mistake? Our enemy doesn’t wear uniforms. They don’t follow a chain of command — it’s hard. There’s some mistakes made, absolutely, and we had a process in Guantánamo that was set up to review the evidence against them and to make sure that people who were not — didn’t belong there were sent back. But the reality is that we got — you know, if we — the left always wants to get this debate onto the topic of abuse. This is a debate about keeping this country safe with the exception of one of our debaters.

John Donvan: Michael Hayden.

Michael Hayden: What’s the judicial process you would use for killing the believed enemy combatant as opposed to capturing him?

John Donvan: Stephen Jones.

Stephen Jones: Well, I think, Marc, the problem that I have, and I think David is right, capturing people on the battlefield is different than arresting someone at Detroit Airport for committing or attempting to commit what is clearly a violation of the federal criminal law, when you can take that person consistent with the Constitution of the United States and Title 18, which is the Criminal Code, and try him other than in a federal criminal court according to the federal rules of criminal procedure and the federal rules of evidence, and to maintain that you can —

Marc Thiessen: You’re wrong.

Stephen Jones: Well, you’re wrong.

Marc Thiessen: No.

Stephen Jones: We don’t have a separate criminal justice system for people that commit crimes in the United States. And it isn’t a question mark of politics or the Left or the Right — or Bush versus Obama. It’s a question of the Constitution. It’s not political, it’s Constitutional and there’s one system of law in this country. Now I will concede that in a battlefield situation abroad or outside the United States, the line is blurry. But when you start saying that you’re going to arrest people and try them in a military tribunal for crimes committed in the United States against American citizens, I don’t think the American people will tolerate that.

John Donvan: We are now going to ask Marc Thiessen to respond to the point just made.

Marc Thiessen: First of all, Ex parte Quirin 1942, this is the Supreme Court: one who takes up arms against the United States in a foreign theater of war regardless of his position shall be regarded properly as an enemy combatant and treated as such. It doesn’t matter whether they’re a citizen or not. I would now assume that you now consider Franklin Roosevelt was a war criminal because the military commissions for the saboteurs who were captured here are unconstitutional as well. And on top of that, military commissions that have been held outside of the Article Three court going back to George Washington. I assume he’s not a war criminal either. But again, you’re completely focused on the criminal justice system. I don’t care if we put Khalid Sheikh Mohammed on trial or not when we capture him. When Khalid Sheikh Mohammed is captured, I want to know what his plans for the next attack are. My question to you is you’re focused on where he’s going to be tried. I want to find out what he knows. When Khalid Sheikh Mohammed was captured, if you were the one who was responsible for getting the information, in the case he’s captured, he’s killed 3000 people just down the street from here. He admits to you that he has plans for new attacks in motion. Does Khalid Sheikh Mohammed have the right to remain silent?

Stephen Jones: Well of course he has the right to remain silent. The only difference between your position and mine is that you don’t think that he should be told he has the right to remain silent and I think it’s beside the point because of course he knows he has the right to remain silent.

Marc Thiessen: So you’re saying — let’s say we captured Khalid Sheikh Mohammed before the 9/11 attacks. Put aside the litany of attacks that he had in play. You would have allowed 9/11 to go on rather that to get him to give the information that he had.

Stephen Jones: Now Marc, let’s don’t defend the indefensible here.

Marc Thiessen: It’s not the indefensible. Khalid Sheikh Mohammed killed 3000 people in this country. He had information, a plot to blow up the Library Tower in Los Angeles, blow up a marine camp in Djibouti, to blow up the consulate in Karachi. These are real attacks. To commit, repeat 9/11 in London.

Stephen Jones: Well that may be true but I don’t want to take The Weekly Standard’s word for it or frankly your book. If all of that is true, then it can be presented to an American jury. An American jury will convict him and give him the death penalty.

John Donvan: What if the clock is ticking in the situation that Marc’s just described? You believe he knows about something that’s about to happen and we’re five minutes away. Would it make a difference?

Stephen Jones: There’s a movie about that and I think that’s an over-dramatization of the issue. Those who look for a way to shortcut the system always first bring forward the most extreme example of what could happen. But the truth of the matter is those extreme examples rarely exist. Where they do exist, I believe the intelligence community and the law enforcement community have on numerous occasions shown the ability much better than politicians to protect individual security or, for that matter, national security.

John Donvan: David Frakt, you wanted —

David Frakt: Yes. I mean the whole ticking time bomb scenario is really a red herring. First of all, police, in the situation where there is an urgent public safety emergency, are not required to give the Miranda warning. So — but if your question is, should we use torture in that situation? And that’s essentially what Marc is saying is that, you know, in order to prevent an attack, you have to be willing to do anything, whatever it takes. And that’s where we have a fundamental disagreement. If we captured Osama Bin Laden, I would not torture him. Is that possibly going to lead to an attack that might have been prevented? It might.

John Donvan: Are you okay with that?

David Frakt: I am okay with it because it would be a great tragedy. But it would be a greater tragedy to go down the road which we already went down of torturing, because that one attack may not be averted, but you are going to multiply the attacks for years to come because of the torture. And that is what we have done.

Michael Hayden: Again, I’ll come back and walk, if you like, a debate on a different subject but as the only one on stage who has actually had the question in front of him as to whether or not it —

John Donvan: Except, Michael, that your partner brought these issues to the table himself in his opening remarks in talk — in justifying and laying out several scenarios in which the actual methods did do it. I think they’re relevant. I don’t think it’s — it’s not a vote on that, but I think it’s germane to understanding what the motion means. And I’d like to see if Marc could respond to what was just said because this is where the rubber hit the road.

Michael Hayden: Well, actually, no. Let me finish, because the rubber hit the road on my car, all right? I’m the one who has to make the decision, okay? These are not easy decisions.  There are conflicting values. There are moral responsibilities galore, okay? No one should trivialize it, and no one should throw bumper stickers at the difficulty of the decision people like me, people like Leon Panetta, have to make, all right?

But I come back to the fundamental question: the American armed forces, the American intelligence community are capable of holding people, consistent with the laws of armed conflict. I feel as if we have gone through the looking glass in the last 30 to 40 minutes as we try to take people who are armed enemy combatants — and David did not make the straw man that Iraq is okay to capture, it’s not okay to capture and keep enemy combatants in Brooklyn, okay? What about Mali? What about Djibouti, what about Yemen? What about the Horn of Africa? What about Pakistan? That is where the enemy is. That is where the enemy is mounting an attack against our citizens. They are enemy combatants. And as God is my judge, I will use the full authority that the law of armed conflict gives me as long as my president and my Congress has given me that authorization.

John Donvan: And your partner, Marc Thiessen.

Marc Thiessen: I would add to that to complete. We’re not going to have time to debate all of the interrogation techniques. They were not torture. And I can walk you through it if you really want to.

David Frakt: I’d rather not.

Marc Thiessen: Well, I’ll tell you something. You said something, and this is — you’re sort of dismissive of the threat in a very sort of disturbing way. You said well, yeah, I’ve let the — you basically admitted you had let the attack happen and treat him as a criminal rather than an enemy combatant. You know, you said earlier, when — about my introductory remark, two little terrorist networks. Well, you know what? One of those two little terrorist networks killed 3,000 people down the street from here, 19 men with box cutters. This is a real threat. These people are out there every day trying to kill us. And I think it’s really shameful to dismiss them as two little terrorist networks. Khalid Sheikh Mohammed was captured in Pakistan. You said unless he’s in Iraq or Afghanistan, he’s not an enemy combatant. So do you consider Khalid Sheikh Mohammed an enemy combatant, the mastermind of 9/11, the man who commanded the operation, the operational commander of al-Qaeda? Is he an enemy combatant, yes or no?

David Frakt: How do you know that he is the mastermind of 9/11? What —

Marc Thiessen: Oh, my God.

David Frakt: He has not been put on trial. And you don’t want to put him on trial. And you are denying those 3,000 victims —

Marc Thiessen: I’m not denying them anything.

David Frakt: You are denying — you say it’s not important to have a trial. I say it is important to have a trial.

Marc Thiessen: It’s not the first priority.

David Frakt: It is important to establish the truth of what happened and for people to get some closure. And it’s important for these people to be punished. I do not in any way diminish the seriousness of 9/11. And I agree with General Hayden that these are difficult decisions. And I am not sure that I would want to be in the position he was in of having to make those.

But what I will tell you is that the oath that we take, that we both took as officers in the United States military, is to defend the Constitution of the United States. It is not to defend the people of the United States. Because what we are defending are our values and our history. And sometimes, yes, it may cost lives. But you cannot achieve perfect security. And when you try to, by making shortcuts, you ultimately diminish us as a country. And it does not serve us in the long run.

John Donvan: Yes from the — the blue jacket and white — blue shirt and dark blue Blazer. Yep. Your colleague is tapping you on the shoulder.

Male Speaker: My name is Les Shelton, and my question is that — comes from the fact that it seems that what was really most difficult is — what is the definition, operationally, of a person who is a terrorist? […] How can we be sure that a terrorist on a bus in Pakistan and the whole bus is grabbed because they know a terrorist is on the bus — And how do we understand, as people listening to all this, how we can feel comfortable with the shortcut because nobody wants their ass burned? And the fact of the matter is we need to feel a bit more — I need to feel a bit more comfortable about the selection process for applying these definitions is somehow rational. And I have to say that our legal system is one of the ways those things are done. But again, we have a group of people who say they’re experts. And they know these people are. But we have a bad history. That isn’t always the case.

John Donvan: Sir, can you cut to your question?

Male Speaker: The question is, how do we make this distinction so that all of us can feel more comfortable with what our government may be doing?

John Donvan: You mean the distinction: who are the terrorists and who is not?

Male Speaker: Yeah. You know, how to get the innocents off the bus.

John Donvan: How and who? I mean, there is also the question of who makes the distinction as well. Let’s take that to the side for the motion. Mike, go ahead.

Michael Hayden: It’s a process. It’s a rigorous process. I governed it while I was the director of CIA with regard to that portion of the war that CIA had responsibility for. To be clear, just being a terrorist doesn’t get much interest from us. The authorization we have from the Congress, the Authorization for Use of Military Force, is against al-Qaeda and its affiliates. So it’s not a global terrorist issue. We are at war with a select group of terrorists. President Obama has made that clear. The Congress has made that clear. President Bush has made that clear. We used the same criteria to capture an individual as a terrorist that we use on the battlefield to kill. It is visual: who is a terrorist? I am responding to the political processes of the American state. All three branches of government have said we are at war. I’m using the full authority given to me. I use it in the clearest conscience I have.

Are mistakes made on the battlefield? Killing, capturing? Of course, they are. What — you have very good men and women working very hard to apply absolute precision to their task. Now, I will admit that the processes of intelligence are a bit different than the processes of the judicial system. Again, as I mentioned in the one habeas case, we had to fold our tent and admit defeat because I could not, in conscience, tell the enemy combatant who the source of our information was. If I did that, I would quickly not have sources of information anywhere in the world. And so we had to make a serious tradeoff. That’s what I mean by putting this into a law enforcement template, rather than using a vigorous and consistent with the rule of law, law of armed conflict.

John Donvan: Thank you, Michael Hayden. Go ahead and take one more question. There is — on the far aisle, almost near the top. Yes. Up seven steps.

Female Speaker: Thank you. I think my question is for General Hayden. You and your partner have admitted that mistakes are sometimes made as to who does get picked up as a terrorist. In the civilian justice system, we say it’s something of a cliché, that it’s better for 100 guilty men to walk free than to convict an innocent man unjustly. What’s your calculation in the war on terror? How many non-terrorists can be rendered off the streets of Toronto or Amsterdam to make it okay?

Michael Hayden: Obviously there’s no precise answer to the question. We do the very best we can. And we review our data constantly. As I mentioned, to David’s point — and he’s nodding in agreement because he’s familiar with the process — we have combatant status review teams even before we had the habeas process at Guantánamo. You go over the evidence routinely. It’s required by our regulations. It’s required by the regime that’s in place at Guantánamo. I hope the audience is not demanding 100 percent certitude and 100 percent perfection before your intelligence services or your military services can act in your defense.

John Donvan: And that concludes round two of our debate. We are about to hear closing statements from each debater. There will be two minutes, each. This is their last chance to change your mind. You will be asked to vote once again immediately after they speak and to pick the winner in this debate just a few minutes from now. Our motion is: “Treat terrorists like enemy combatants, not criminals.” And first, to summarize his position against the motion, Stephen Jones […]

Stephen Jones: As we have listened to the debate tonight, I think two or three issues have emerged sharply. The issue is not just about the treatment of individuals at Guantánamo Bay. The issue is larger and that is, what is the system we will use to adjudicate the guilt of those persons charged with crimes against the United States? And I say that the line is indivisible.  By that I mean you cannot say, “We have one set of justice over here for these categories of crimes, that one rule of evidence, one rule of procedure, one rule of appellate practice, and over here we have an entirely different rule of evidence and a different procedure.” First, that leaves the intelligence community who are largely anonymous and many law enforcement officers and prosecutors unaccountable in the final analysis for the decision made. General Hayden has been very correct in telling you that there is not 100 percent perfection and there isn’t. After all, the 9/11 Commission in its report talked about the system was blinking red, so our intelligence and many of our law enforcement officials and indeed political leaders knew of the risks and did nothing.

In the final analysis, accountability for responsible decisions has to be made somewhere, political process, the legal process, something done openly, but that is not what the argument is made by our colleagues to our right. Their argument is trust us, trust us, we’ll get it right this time. Unfortunately history shows too many examples of not getting it right. That’s why we have the rule of law.

John Donvan: Thank you, Stephen Jones. […] Summarizing his position for this motion, Marc Thiessen […]

Marc Thiessen: We did get it right. In the period in the eight years before September 11th, 2001, al-Qaeda killed roughly 3,500 people in a series of attacks starting with the 1993 World Trade Center bombing, followed by the attack on our embassies in Kenya and Tanzania, followed by the attack on the USS Cole and culminating in September 11th, 2001. That was when we followed the law enforcement approach to interrogation. During that period of time, we prosecuted 29 people in connection with those attacks. If you think that is an approach — and we didn’t get the intelligence we needed to stop the September 11th terrorist attacks, in the period that followed we have not been hit again.

So it’s a very stark question; do you want to go back to the approach when al-Qaeda was mounting attacks of increasingly lethality, or do you want to follow the approach that we took which has kept this country safe for almost a decade? Our opponents are trying to wiggle out of it. They want you to focus you on waterboarding and the interrogation techniques. If they don’t like the techniques we used, there’s a wide line between waterboarding on one hand and “You have the right to remain silent,” lawful techniques that can be used short of that.

Choose other techniques, but what their position holds, if you hold that a terrorist is a criminal and not an enemy combatant, we cannot kill them using predator drones outside of the war zones of Iraq and Afghanistan. We cannot kill them in Pakistan. We cannot kill them in Yemen. We cannot kill them in East Africa. There are terrorists plotting to attack us right now that Barack Obama would not be allowed to kill. And second, we will not be able to interrogate them effectively as we found out after the Christmas Day bomber, as we found out with the Times Square bomber. So this is a very stark question. Do you want to go back to the approach that led to 3,500 American people getting killed and we were not able to get the intelligence to stop the attack? Or do you want to follow the approach that kept our country safe for almost a decade?

John Donvan: Thank you, Marc Thiessen. […] Summarizing his position against this motion, David Frakt […]

David Frakt: Our opponents seem to have valued American lives more than the lives of anybody else. They seem to forget about Madrid, about London, about Bali. The terrorists have not stopped. But simply because we’ve tightened security domestically and presented easy targets overseas, the action is moved overseas. We are not safer today than we were on September 12th, 2001. We are in a worse position because of our actions in the war on terror, our lawlessness and our abandonment of the rule of law. General Hayden talks a lot about the rule of law and serving it but that was not really our experience under the prior administration. Let me tell you about my personal experience. I was assigned to represent two detainees in Guantánamo.

Both had been determined to be enemy combatants in the combatant status tribunals that you heard about. But in fact, neither was an enemy combatant. One, Mr. Ali Hamza al-Bahlul, was, in fact, a terrorist. He was an al-Qaeda insider. He was a media advisor and created propaganda for al-Qaeda. He should have been tried in federal court for material support to terrorism. He was not an operational terrorist. He did not kill any Americans. He did not plot any attacks on Americans. The other [Mohamed Jawad] was neither an enemy combatant nor a terrorist and, in fact, he was a child who had been tortured into confessing to something he didn’t do. A lot of mistakes were made. The rule of law was not observed.

Over time, with the intervention of the Supreme Court, we gradually brought the pendulum back to something approaching equilibrium. But they’re advocating going back. I’m advocating going forward. So we urge you to vote against the proposition. Thank you.

John Donvan: Thank you, David Frakt. […] To summarize for the motion, our final speaker, Michael Hayden […]

Michael Hayden: As I predicted and somewhat feared, we’ve sidled into a discussion as to whether or not you are for or against the rule of law. I warned you that that was not the issue here, that there is plenty of law with the laws of conflict to govern our behavior and the American armed forces, the American intelligence community are quite capable and competent to function within that framework. I was taken aback a little bit by saying that the intelligence community is not accountable. Clearly Stephen has never been in front of the Senate Select Committee or the House Permanent Select Committee on Intelligence and to go through the openness that we share within the confines of those committees.

I was struck as Stephen said the system was blinking red and I think he was alleging some sort of incompetence. The attack still happened in the summer — in September of 2001. The attack still happened not because the intelligence was wanting — although certainly you can always use better intelligence. The act took place because the model we were using, the model in which we placed the intelligence which was a law enforcement model. [Editor’s Note: I don’t think anyone would agree with this statement who has read Lawrence Wright’s The Looming Tower, with its vivid explanation of how turf wars between the CIA — in particular — and the FBI prevented both sides from putting together the jigsaw pieces both possessed, which, if both sides had cooperated, would probably have prevented the 9/11 attacks].

The difference between now and 9/11 is that we are a nation at war and we are taking the fight to the enemy. There’s an office in CIA, the most operational office that we have on our Langley campus, responsible for many of the things the current administration is taking credit for. You walk into that office, you hit a bulkhead, a wall, and there’s a sign there saying today’s date and you walk by it, very often don’t recognize it but every now and again you catch it. It actually says today’s date is September 12th, 2001. It’s been up there for over eight years.  When I was director and got in a car and drove down G.W. Parkway to my home, it didn’t feel like September 12th. It felt a lot like September 10th. That’s an attitude that we adopt at our peril. Thank you.

John Donvan: Thank you, Michael. That concludes our closing statements. And now it’s time to learn which side argued best. I’m going to ask you, once again, to vote. […]

All right. I now have the final results. We had you vote twice, one before the debate and once again at the conclusion. We asked you where you stood on our motion, which is: “Treat terrorists like enemy combatants, not criminals.” The team that has changed the most minds, that has moved the most percentage points will be declared our winner. Here is how it went.

Before the debate, 33 percent of you were for the motion, 32 percent were against, 35 percent were undecided. After the debate, 39 percent for, 55 percent against, 6 percent undecided. The side against the motion wins.

Our congratulations to them. Thank you from me, John Donvan and Intelligence Squared U.S.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

David Frakt, Stephen Jones, Michael Hayden and Marc Thiessen Discuss Guantánamo and “Enemy Combatants” (Part One)

On September 14, Intelligence Squared U.S., an organization founded in 2006 that holds “Oxford-style debates” in New York, with high-profile figures discussing hot political topics, held a debate on the motion, “Treat terrorists like enemy combatants, not criminals,” which was proposed by former CIA director Gen. Michael Hayden and torture apologist Marc Thiessen, and opposed by Lt. Col. David Frakt, law professor, expert in the laws of war and the former military defense attorney for two Guantánamo prisoners, and Stephen Jones, the attorney who defended Oklahoma bomber — and U.S. terrorist — Timothy McVeigh.

As this was a fascinating discussion, and one that touched on some of the key problems with the Bush administration’s “War on Terror” detention polices — and the mistaken rationale for holding men neither as criminal suspects nor as prisoners of war, which, disturbingly, has been maintained by the Obama administration — I’m cross-posting the transcript of the debate (PDF) in two parts (please also note that a video is available here). In the first part, below, the four speakers present their arguments, and are then questioned by moderator John Donvan of ABC News, and in the second part, the speakers take questions from the audience, and then sum up their arguments.

I’m delighted to note that, when the audience voted before the debate, 33 percent supported the motion, 32 percent opposed it, and 35 percent were undecided, but that, by the end of the evening, Lt. Col. Frakt and Stephen Jones had swayed a larger number of undecided voters, so that 39 percent supported the motion, 55 percent opposed it, and 6 percent were undecided. If only lawmakers, media pundits and the wider U.S. public could be persuaded in a similar manner …

I have presented the transcript largely as it appears on the Intelligence Squared website, but on occasion I have added my own editorial comments, addressing points that were not picked up on by the speakers, or (largely in Thiessen’s case) comments that were clear distortions of the truth.

“Treat terrorists like enemy combatants, not criminals”
An Intelligence Squared U.S. Debate, New York, September 14, 2010

Robert Rosenkranz (Founder, Intelligence Squared, U.S.): Good evening. As we assemble tonight, a few days after the anniversary of 9/11, it should be obvious that there are distinctions between terrorists and criminals as well as between terrorists and soldiers, just as there are distinctions between counter-terrorism and the criminal justice system and the laws of war. A major function of criminal law is to deter crime. The reason we allow an insanity defense in criminal cases is because the insane cannot be deterred. Obviously suicide bombers cannot be deterred either. Another function of criminal law is punishment: interrogations are conducted to link suspects with crimes that have already been committed so we can punish the guilty.

When we interrogate suspected terrorists, the goal is to prevent attacks before they occur. In criminal proceedings, we would prefer to see a guilty man go free than to compromise our sense of fairness. That is why, for example, the most damning evidence of guilt cannot be used if it is obtained illegally. Turning to the laws of war, the Geneva Convention is in part a bill of rights for soldiers in uniform; but the convention equally protects civilians by making them readily distinguishable from soldiers.

Tonight’s resolution is about whether these distinctions should or should not make a difference. Are the substance and procedures of standard criminal practice consistent with our societal needs for intelligence and security? Do the Geneva Convention protections for soldiers in uniform apply to non-state actors, who are not parties to the convention and who blend with and deliberately target civilian populations? Finally, if we don’t treat terrorists like criminals, and we don’t treat them like soldiers, where do we look for constraints on our military, intelligence officers, and interrogators so that their actions are consistent with our societal values?

These are vexing issues, and we have an outstanding panel with us this evening to discuss them. So now I’d like to turn these proceedings over to our moderator, John Donvan.

John Donvan: Well, welcome everyone to another debate from Intelligence Squared, U.S. I’m John Donvan of ABC News and again, it is my honor to be serving as moderator. As the four debaters you see sharing the stage with me at the Skirball Center for the Performing Arts at New York University. Four debaters, two against two, will be debating this motion: “Treat terrorists like enemy combatants, not criminals.” Now, this is a debate. There will be a winner and a loser, and you our audience will be serving as the judges. By the time the debate has ended, we will have asked you to vote twice, once before the debate and once again after you have heard the argument. And the team that has changed the most minds, once we see where you stand on the motion, that team will be declared our winner. […]

So on to the debate: Round one, opening statements by each debater in turn. They will speak for seven minutes each uninterrupted. Our motion is: “Treat terrorists like enemy combatants, not criminals.” And I would like to introduce our first debater arguing for this motion, Marc Thiesson, who is a columnist for the Washington Post. He’s also a fellow at the American Enterprise Institute, a former speechwriter for President George W. Bush. He came out with a book this year that was a stiff defense of the interrogation methods used by the CIA throughout the war on terror and it sold really, really well actually, Marc, congratulations to you. So a lot of people liked it, your critics don’t like it. They — I think Jane Mayer of the New Yorker calls it the bible for the torture apologist. Is that fair?

Marc Thiessen: No, not at all.

John Donvan: Okay. Ladies and gentlemen — I’m surprised you said that. Marc Thiessen.

Marc Thiessen: I want to thank Mr. Rosenkranz for inviting Mike Hayden and I to the only debate we could possibly win in Greenwich Village. We just marked, as Mr. Rosenkranz said, the anniversary of September 11th, 2001. I’d like to start by asking members of the audience a question. With a show of hands, how many of you remember exactly where you were when the attacks of September 11th happened?

John Donvan: Let the record show it’s everybody.

Marc Thiessen: Okay. I want you to think back to that time. I want you to think back to the scenes of burning rubble. I want you to think back to the shock that you felt at the ability of the terrorists to penetrate our defenses and launch such an attack like that in our midst. And the questions we were all asking. Who had attacked us? What do they want? Were there more attacks coming? If I had told you back then that we would go almost a decade without another terrorist attack, who would have believed me?

Very few, I think, a few. Most of thought it was going to be the first of many attacks. I was in the Pentagon on September 11th, 2001. I was blessed not to be not at the point of impact, but I was a few corridors down and I remember feeling the building shudder; I remember the smell of the smoke in the hallways. And the one thing I remember very distinctly is that the alarms never went off, the evacuation alarms. We all just sort of filed out of the building and went on out to the lawn and looked back at the broken and burning Pentagon.

But in the months that followed, the alarms went off a bunch of times as false reports of impending attacks, planes that were headed our way kept coming in. And every time, the whole building, we would all evacuate and go out on the lawn and look up at the sky, waiting for the attack that never came. Why did that attack never come? I would submit to you there are only two possibilities. Either the terrorists lost interest in attacking us again, or we found out what their plans were and stopped them from carrying them out.

Mike Hayden and I will argue tonight that the latter is the case. We will argue that the reason that attack did not happen is because we abandoned the law enforcement approach to terrorism that failed to stop the 1992 World Trade Center bombing, that failed to stop the attack on the embassies in Kenya and Tanzania, that failed to stop the attack on the USS Cole, that failed to stop the attacks of 9/11. That we abandoned that approach and began to treat terrorists as enemy combatants and not criminals.

In those early days after 9/11, we knew almost nothing about the enemy who had attacked us. We did not know that Khalid Sheikh Mohammed was the mastermind of 9/11. He wasn’t even on our charts. And we didn’t know who his accomplices were. And unbeknownst to us, there were two terrorist networks out there, at large, planning new attacks. The KSM network that had planned and carried out 9/11, and the Hambali network which was a Southeast Asian terrorist that KSM had organized because he knew we’d be on the lookout for Arab men.

And those terror networks were in the advanced stages of planning a series of attacks including a plot to blow up high-rise apartment buildings in the United States using natural gas, a plot to repeat 9/11 in Europe by flying airplanes into Heathrow Airport in downtown London, a plot to blow up the U.S. consulate in Karachi and western residences in Karachi, an al-Qaeda cell that was developing anthrax for attacks inside the United States and a cell of southeast Asians who KSM had tasked to fly an airplane into the tallest building in the west coast, the Library Tower in Los Angeles. We did not know any of this, not a word. We didn’t know who those people were, what they had planned. And then we started capturing terrorists. Abu Zubaydah, Ramzi Bin al-Shibh, KSM, and they provided us information that allowed us to round up and dismantle both of those terror networks. [Editor’s Note: I need hardly explain that much of this is fiction — for example, the non-existent “plot to blow up high-rise apartment buildings in the United States using natural gas,” which supposedly involved the British resident Binyam Mohamed — and that only the most ferocious apologists for torture cling to the claim that the well-documented torture of Abu Zubaydah or Khalid Sheikh Mohammed produced any reliable information that actually foiled any plots].

When KSM was captured and brought into custody, he was asked about upcoming attacks. You know what he said? I’ll tell you everything when I get to New York and see my lawyer. Ladies and gentlemen, our opponents tonight would have granted that request. And if we had listened to their advice, if we had told KSM you have the right to remain silent, there would be craters in the ground in Los Angeles and Karachi and London and other cities in this country because of the attack that we did not stop. This debate is about more than Miranda rights. The Obama administration had eliminated the CIA program, but at least they’re killing terrorists using predator drones, right? No, no, no say our opponents, that’s illegal too. The ACLU and Center for Constitutional Rights filed a lawsuit a couple weeks ago saying that because terrorists outside of Iraq and Afghanistan are criminals and not enemy combatants, we cannot kill terrorists in those areas using predator drones. So if you believe that we should not kill terrorists using predator drones, then vote for them. The fact is that that program has killed half the al-Qaeda leadership and it is probably the only thing standing between us and another 9/11. (Editor’s Note: See here for UN condemnation of the drone assassination program].

One final point: Our opponents are going to try to turn this into a debate on waterboarding. I’m happy to have that debate. As John pointed out, I wrote a book defending it. But if they’re arguing about waterboarding, they’re losing and I’ll tell you why. It is a little known fact — how many people think Barack Obama ended waterboarding? He didn’t. My debate partner Mike Hayden ended waterboarding. When Mike Hayden handed over the CIA program to Barack Obama, the techniques involved were the tummy slap, the facial hold, mild sleep deprivation and a diet of liquid Ensure. I’m sure the makers of liquid Ensure will be thrilled to know that their product is torture.

Bottom line is, there is a wide area between waterboarding on one hand and telling KSM and other terrorists, you have the right to remain silent. So you can be against waterboarding and for the proposition, that we should treat terrorists as criminals, as — before the proposition, we should treat terrorists as enemy combatants and not criminals. So finally I’d just like to ask you, keep in mind, if you would like to keep killing terrorists with predator drones, if you would like — if you think that our first priority in the war on terror, when we capture a terrorist, should be interrogating them for intelligence, not obtaining evidence for prosecution; if you want to continue the approach to counterterrorism that has prevented us from being struck again as we were on 9/11, then I ask you to vote for our position. If you would like to eliminate all those tools, I suggest you vote for the other side and find a safe place to hide. Thank you.

John Donvan: Our motion is: “Treat terrorists like enemy combatants, not criminals.” We have heard the opening statement by the side for the motion and now to speak first against the motion, I’d like to introduce David Frakt who is a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps.

That means he’s a lawyer in the military. He served as lead defense counsel at the Office of Military Commissions. He represented detainees at Guantánamo. His most famous case is that of the teenager [Mohamed Jawad] who was released finally after you made the case that his interrogation had been conducted improperly. He went home. David, I know it worked out well for him. Is it your view that [it] works out well for the United States?

David Frakt: Absolutely. Anytime an innocent man is released, that’s a very positive thing.  And I — it wasn’t my advocacy that got him out. Actually the Department of Justice, after seven years, acknowledged that actually he was not an enemy combatant, and so he was sent home and it was a great day for America.

John Donvan: Ladies and gentlemen, David Frakt.

David Frakt: Thank you. It’s a privilege to be here and against such august opposition. I’m going to start by disagreeing, and it’s probably not a good idea to disagree with your host, but Mr. Rosenkranz made a comment in his opening remarks that the criminal justice is about punishing criminals after the fact. And that’s a notion I would like to disabuse our audience of because the criminal justice system is much more robust than that. It’s there — our law enforcement and working hand in hand with intelligence — is there to detect crime before it happens, to infiltrate terrorist networks, to deter attacks. And we don’t have to wait for a crime to be completed before stepping in. We’ve seen it over and over again where the police or the FBI or NYPD breaks up a terrorist cell or just discovers a plot in progress or conspiracy, and those people can be arrested.

They can be interrogated by law enforcement, and those interrogations yield a lot of information. There’s this perception somehow that reading people Miranda rights automatically means that they’re never going to talk again. And it’s true that sometimes when advised to the right to an attorney and the right to remain silent, that people clam up, but not always. In fact quite often, they divulge a lot of information.

And so we’re able to charge people with attempting crimes, with conspiracies to commit crimes and put a lot of terrorists away. In fact, since 9/11, and talking only about federal prosecutions, over 400 terrorists have been locked up for an average of 20 years apiece. Now contrast that with Guantánamo, which at its peak had 787 detainees — all of whom were at one time accused of being enemy combatants. The Bush administration ended up releasing over two-thirds of those when they realized they had no evidence against the vast majority of them. Another 100 were cleared for release before President Obama took over. Another 100 have been cleared for release now. So what’s the scorecard now? We have four detainees who have been prosecuted successfully in military commissions: four convictions versus 400. The Obama administration, after a year-long review, determined that there were 35 detainees that should be tried in some criminal form and there’s another 48 that they say are too dangerous.

So we’re talking about 83 people, after seven or eight years that they’ve decided are really the bad guys. And this is the danger of simply labeling people as enemy combatants. And you have to think about the implications of what is being proposed here because as a whole — and Mr. Thiessen acknowledged it — they want to go back to the program of the prior administration.

And what did that entail? It entailed locking people up indefinitely without charge, without access to courts, without access to counsel, subjecting them to a full range of interrogation techniques, many of which are abhorrent to American values. And they were not given the opportunity to defend themselves, to even find out what the basis for their detention was. And that’s the system that Mr. Thiessen would like to return to. And I think it’s a fundamentally un-American system. Terrorists are criminals, nothing more. It may be that they have particularly grandiose criminal plans. But by labeling them as combatants, we actually legitimize them. We elevate their status to a warrior status, which is what they seek. And we engage in a war on their terms. And I don’t think that’s a good idea.

Let me pose a question. Mr. Thiessen posed a question to you and he talked about the fact that there haven’t been any attacks as if this is proof that those methods — the illegal interrogation methods and treating people as enemy combatants — worked and that’s the reason we didn’t have any attacks. Let me tell you why we didn’t have any attacks. And of course there were a number of attempted attacks. But the reason is because, by treating terrorism primarily as a military problem, as a war, we started two voluntary, unnecessary wars, in Afghanistan and Iraq, and we presented the terrorists with hundreds of thousands of targets, American soldiers. And as bad as 9/11 was, and 3,000 people died on that day, we have lost 5700 American service members, dead. Another 1100 coalition members dead in Iraq and Afghanistan and 39,000 American service members injured. It’s basically revived the Veterans Administration Hospitals because we have a whole generation of wounded warriors out there who have been fighting wars that really aren’t necessary.

And are we safer? That’s the question you really have to ask. Are we safer after eight years of this approach? Ask yourself this question. Are there more people in the world — according to Mr. Thiessen, there were two little terrorist cells of al-Qaeda after 9/11. How many terrorists are there right now in the world or violent jihadists who are willing to strap a bomb to their bodies and kill Americans, or plant roadside bombs? We have essentially launched a global war — and that’s what we called it, the global war on terror that the Islamic world interpreted as a war on them and we have alienated tens and hundreds of millions of people unnecessarily. And we are not safer. We are not safer when we abandon our core values. And that’s ostensibly — they use coded language but that’s what they’re talking about because they’re talking about not using law enforcement methods, not using traditional tools. They want a world of perfect security where no crimes are ever committed, where no terrorists attack. That’s never going to happen. And when you seek, strive for that, you end up with a police state. The safest country in the world is North Korea, but we don’t want to live in North Korea.

John Donvan: David Frakt, thank you very much. We have heard from the first two debaters arguing for and against this motion. Now our third debater to argue for the motion, I’d like to introduce Michael Hayden; he is a retired four-star Air Force general and former director of the CIA. And Michael, when you took over the interrogation program of the CIA that had been in place, had just about been called to a halt under political pressure and other complaints, you decided to take a look at it again, commissioned your own review, which you undertook personally, and you concluded what?

Michael Hayden: I spent the whole summer of 2006 getting what I would call a graduate degree on the CIA Interrogation and Detention Program. I was a blank slate; I had no vested interest in what had gone on before. I could have chosen any course of action. At the end of the summer, I went to President Bush and said I wanted to make some modifications to the program, but as Marc has suggested, I could not in conscience, given my responsibility of the CIA to defend the republic, take this program off the table for him or for any future president. He needed this. In conscience I could not just say make it go away. It would have been a comfortable decision, John. It probably would have gotten credit in some circles, but it would have been immoral.

John Donvan: Ladies and gentleman, Michael Hayden.

Michael Hayden: Well, I think Marc and David have kind of teed up the question pretty nicely for us here. Are we a nation at war or are we not? Should we perceive ourselves to be at war or should we not? David said that our adversaries in this thing out there, war or not, are criminals and nothing more. But if that’s the case, let me take you back almost a year to the day to the Horn of Africa, to Somalia, to American Navy SEAL, in a helicopter, a Seahawk, coming off a Navy carrier in the Indian Ocean, going after an individual named Saleh Ali Nabhan, at the time was the leader of al-Qaeda in Somalia, al-Qaeda in the Horn of Africa.

We killed him. We landed long enough to swab up portions of his remains to get DNA evidence that we had killed him. I wasn’t in the mission, I was out of government at this time, I wasn’t privy to the pre-brief. But I know what was asked by the field commander before he got on the helicopter: Sir, is this a kill or a capture? And it’s very clear from what happened, he was told this is a kill. No probable cause, no warrant, no court. Because we are a nation at war and Saleh Ali Nabhan was part of an opposing armed enemy force. I became an advocate; my epiphany that we are a nation at war took place about 10 minutes after 10:00, September 11th, 2001. It became clear to me at that point and I believe in few things more firmly than I believe in the fact that we are a nation at war. President Obama has said we are a nation at war. President Bush has said we are a nation at war.

In March of 2007, I went to the German residence to give a talk to all the ambassadors to the United States from the nations of the European Union. And Germany was in the chair of the E.U. They were inviting these ambassadors in. They invited an American to come in and kind of be the lunchtime entertainment. Bob Gates was there at one point, Condi Rice at another. This was my turn and I decided to say something interesting. I decided to talk to our European friends about rendition, detention and interrogation. I had a wonderful speechwriting staff at CIA, but this was a speech that I took a personal hand at. On page two of that speech, I simply said to our European friends, let me tell you what I believe, what my agency believes, what I believe my country believes. We are a nation at war. We are at war with al-Qaeda and its affiliates. This war is global in scope and I can only fulfill my legal and moral responsibilities to the citizens of my republic by taking this fight to this enemy wherever he may be.

A year ago last August, August of 2009 I was in Phoenix. President Obama was addressing the VFW. He said quite clearly we are at war; we are at war with al-Qaeda and its affiliates. Now I know most of the American population doesn’t sense they are at war. I know that. The American armed forces know that we are. The American security establishment knows that we are. The American intelligence community knows that we are. You, your political processes have sent me, a career military officer, the director of the CIA to war. You have told me to defend you. Do not take away from me the tools that I need to perform the service you demand. At some point in our conversation tonight, there will be a discussion here about how we need to uphold the rule of law. I could not agree more. It just matters what model of law we are committed to upholding. Is this an issue best addressed through American criminal law or is this an issue best addressed through the laws of armed conflict? I submit to you that it’s only the laws of armed conflict that will keep you safe. This isn’t theoretical for me; this was real.

I had a meeting with my general counsel and his team at CIA about two years ago. I said to the team, our enemy is opening a new front. They are beginning to attack us — with attack in quotes, it’s a bit metaphorical — they are beginning to attack us in the American legal system.  We have to best them in the legal system the way we are defeating them in the tribal region of Pakistan.

And I told my lawyers, I want you to lean as far forward and the hardest as you possibly can in terms of giving information to our court system. I want blood on the harness, you are leaning so far forward. We worked our tails off in those judicial processes, specifically habeas corpus. When we got a point where we could go no farther, one of the judges demanded that we provide not him, but the defendant, the name and the identity of the intelligence source we had used in order to determine that he was a member of al-Qaeda. I know you don’t live in the world I used to live in, but there is nothing that a director of CIA could do in those circumstances. You cannot let the world know that sources who risk everything, who risk all to work for you, will have their names revealed in the American judicial process, to the individual they have identified as al-Qaeda.

The Christmas attack is another little morality play. It really demonstrates the fallacy of treating this as a law enforcement matter. When Umar Farouk Abdulmutallab attempted to down an American aircraft, he was a member of al-Qaeda; he was an enemy combatant. It was an attack mounted from outside the United States towards and in the United States. And because of a law enforcement mentality, we sent a clean team in there. A clean team; that is somebody in the FBI who knew nothing of what Abdulmutallab [could tell] us. […] Every known al- Qaeda aircraft attack this country has involved multiple threats of attack: 9/11, 2006 from London, the Bojinka plot over the Pacific. And yet after 50 minutes, our instincts were so strong to the law enforcement that we allowed him to lawyer up. [Editor’s Note: See here for a report abut how, contrary to these claims, Abdulmutallab cooperated with his interrogators without being declared an enemy combatant and subjected to coercive interrogations].

That’s unconscionable. That’s a terrible decision. It is based upon a model that you know, he’s just a criminal and we just need to make sure we get him in jail. That’s not the objective here. The objective is to keep you safe.

John Donvan: Thank you very much. Our motion is, “Treat terrorists like enemy combatants, not criminals,” and finally to speak against the motion, I’d like to introduce Stephen Jones who is an attorney from the Midwest, from Oklahoma I believe, managing partner of the law firm Jones, Otjen, and Davis. He has also defended a well-known terrorist, but not from the Middle East. He defended Timothy McVeigh, the Oklahoma City bomber. And you were a public defender in that role, so you were assigned to him and he to you. I’m curious, did you want that case when it came to you?

Stephen Jones: Well, I wasn’t the public defender. I wasn’t even on the panel. I was appointed as lawyer by the judges in the federal courts in Oklahoma City.

John Donvan: And did you want the case?

Stephen Jones: Well, when the judge or judges ask you to take a case, what you want or don’t want is not relevant.

John Donvan: Ladies and gentlemen, Stephen Jones.

Stephen Jones: First of all, let me tell you that I am a Republican and I voted for George Bush both times, and I voted for John McCain and yes, Sarah Palin, and I don’t apologize for that. I don’t think the argument here is political. I think the argument is constitutional and it basically boils down to how far we are willing to sacrifice our ideals, our history, our beliefs as a nation for security. And is that security real or temporary?

Has the target of our adversaries simply moved offshore, much like banking and investment, or is the target here? For various law enforcement agencies and members of the national intelligence establishment who have protected us and work long and devoted hours, there can be no criticism. But that’s hardly the issue, nor frankly is the ACLU the issue. The issue quite simply is whether we are a nation of laws, and there are three reasons, compelling reasons why you should vote against this resolution and vote no.

The first is that the United States of America did not happen accidentally. There was a political deal, a bargain. The bargain was this; that the twelve states that participated in the Philadelphia Convention would surrender some of their rights which they held very importantly, to a central government that they had no experience with. And in return for that surrender of their rights to that central government, that government would, as its first order of business, pass a series of amendments of the Constitution to restrict the power of that government which they had agreed to join. So the right, the freedom of speech, freedom of assembly, the right to petition, redress of grievances, the right to a fair trial, to due process, to protection against self-incrimination, to the assistance of counsel, to be safe and secure unless a warrant is issued by law enforcement to search it, the right to a public trial, the right to a speedy trial — all of those are in the first 10 amendments. And the bargain was redeemed.

And 100 years later, or almost 100 years later, that bargain was purchased and redeemed by the blood of more Americans who died in the Civil War than all the other wars.  By the Civil War, President Lincoln’s address at Gettysburg and the passage of the 14th amendment, we as a nation reaffirmed the ideal, which is due process of law, equal protection of all people under the Constitution. Not something that we always follow, and there have been black holes in our history, but that is our ideal, that is the American experience: a written Constitution that limits the power of government.

Secondly, the United States is, for millions, hundreds of millions of people in the world, their ideal. One of our presidents once referred to a letter by one of the early English governors, that the United States is a city upon a hill. Well it is a city upon a hill and what makes us special is that we try, every day and in every way, most of us, to uphold those ideals. And if we were to surrender even temporarily those ideals, if we were willing to say, to these individuals who are charged, charged not convicted, charged with terrorist offenses, that we will be like Great Britain and Northern Ireland in the early ’70s and we will suspend these basic rights, these things that our national experience has taught us, we would lose many of the allies, supporters, and people who in their hearts look at the United States.

And finally, having represented a terrorist — and before 9/11, the Oklahoma City bombing was the greatest act of domestic terrorism in this country. 168 people dead, 19 of them children under the age of six. Eight federal law enforcement agents, over a billion dollars of uninsured damages, 500 people seriously injured and 30,000 who sought and received mental or emotional intervention because of their disturbances. But Tim McVeigh was tried and convicted before a jury in a federal court. He had lawyers; he got a change of venue; he got a severance; he got the money through the federal system to pay his lawyers, to investigate the case and bring witnesses to Denver, Colorado even in the last days of that trial, [when] the G-7 summit was meeting in Denver. But in our country, our security forces, our law enforcement was able to provide both a fair trial for Tim McVeigh and protect the world’s leaders meeting five miles away.

Now, ladies and gentlemen, the courts are a sanctuary in the jungle; that’s what they are. They are to determine justice is blind; we don’t have a special court for people we call a terrorist. We don’t have a special criminal court for drug dealers; we don’t have a special criminal court for murderers or people who commit other crimes, whether serious or small. We have a federal judicial system and a state judicial system and then for the armed forces, the uniform code of military justice. Because 200 years’ national experience has taught us that our safety comes just as much from adherence to the rule of law as it does to the talents of our intelligence agencies and our law enforcement agencies.

The history of our country is on the side that Dave and I represent. And I urge you to vote no and to affirm the rule of law, regardless of how despicable persons may be. For in the final analysis the justice of a society is measured by how it treats its worst, not its best.

John Donvan: I’m John Donvan of ABC News. I’m host and moderator for this Intelligence Squared U.S. debate. We are at the Skirball Center for the Performing Arts in New York City at NYU. We’re on a stage surrounded by several hundred of you in the audience and on our stage, four debaters, two against two debating this motion: “Treat terrorists like enemy combatants, not criminals.” The team arguing for the motion include a former CIA director and a speechwriter for the Bush administration, now an author. They are arguing that we are in a war and that in war for the sake for security and survival, we have to at times undertake unpleasant actions. It may even be the moral thing to do. Their opponents include two attorneys, one who works for the military and one who defended Tim McVeigh, and they argued that terrorists are nothing more than criminals. And to treat them as more than criminals actually does them a favor.

We are now into round two and I want to, at this point, invite you into the debate. In a few minutes I’ll come to you for questions but in this part of the debate, the debaters can address one another directly and also will take questions from me. And my first question is actually to the side arguing against the motion.Your opponents include a former director of the CIA, a speechwriter for the Bush Administration who wrote the president’s speech in which he discussed these issues and he was briefed, as he tells us extensively, on how the system actually works and what it actually produced. And they are painting a very dire picture. And my question to you, their opponents, is whether they may just know more than you do?

David Frakt: Well, I would hate to concede that, and I would note that I do have a top secret FBI clearance, but I did not get the opportunity to see much of the intelligence that would have come across the desk of General Hayden. I would hope that that intelligence did not come across the desk of Marc Thiessen. But — but some of it somehow seems to have gotten its way into his book. So maybe we ought to be investigating that. But —

Marc Thiessen: The person you’d be investigating is Barack Obama, who released it.

John Donvan: Back to David Frakt.

David Frakt: I’m sorry. One of the things that I want to —

John Donvan: Well, no, I’m asking the question in a serious way, that you — so you hear the director of the CIA said, this was on me, this was my responsibility. Not that I love doing these things or any of us love doing it, but I saw the impact. And that’s why I came to that decision.

David Frakt: I don’t dispute that there is a possibility that some of the methods endorsed by the Bush administration may have worked at times. But what that boils down to is an “ends justify the means” argument. And that’s the argument that we reject. Because you cannot achieve perfect safety. Might we have found that information without using enhanced interrogation methods? Might we have used it if we had prioritized our intelligence, gathering our law enforcement in other ways? They talk about plots that were foiled. They don’t talk about all the blind alleys that they went down.

They don’t talk about all of the lives that were ruined through false confessions that were wrung out of people in coercive interrogations. They don’t talk about the people that were falsely accused and only years later were released with no apology, no compensation. So it’s not entirely one-sided. Yes, sometimes the methods may work. But if they’re un-American, then we should not be doing them.

John Donvan: Michael Hayden.

Michael Hayden: If you’re going to debate about what constitutes appropriate interrogation methods, invite me back. I’d be happy to come. But that’s not what this is about. This is: are these or are these not enemy combatants? And if they are enemy combatants, do I have the right to hold them, consistent with the laws of armed conflict because they are a danger to you? The Geneva Convention doesn’t require me to prove that they’re a criminal. I simply have to have reasonable belief that they’re enemy combatants.

John Donvan: But General, the implications of — the implications of that decision actually in practice have to do with the most important and critical information, the rationale for even heeling to your position is to be able to interrogate them using certain methods.

Michael Hayden: No, no. The rationale, the primary purpose is to take the enemy combatant off the battlefield. And if you overcomplicate my taking them off the battlefield by capturing him, you will leave me with one other choice to take him off the battlefield, and that’s to kill him. Now, do you want to create that box? If the American political process wants to create that box, the people who are left behind in the intelligence service will work in that box. But that is a far less noble box than continuing the war as we have traditionally fought wars. I was stunned that Stephen made the comment to follow American history. When in American history have we had habeas hearings for enemy combatants?

John Donvan: David?

David Frakt: I think we need to be very clear about who we’re talking about and define who we’re referring to when we’re talking about terrorists because from our perspective, we are not talking about people who were actually captured on a battlefield in Iraq and Afghanistan. There is no doubt that there is in fact an armed conflict going on in those places. And as a military attorney, as a judge advocate, certainly I acknowledge that under the laws of war, we do have the power to detain and remove from the battlefield people who are engaged in active conflict. The problem is that the war has been defined in such amorphous terms that there’s a claim of a global battlefield, including the United States, and that anyone who essentially is against America, and mostly we’re talking about — their focus is on Islamic terrorists — are enemy combatants. So Major Hasan is a terrorist. But really, he’s a criminal. People — if you are in the United States, and you attempt to commit a crime, the United States really is not a battlefield. I reject that. And even if it you think it is, the Constitution does apply here.

So there is a limited group of people that, yes, if it’s in an active war in a theater of war, that they can be captured and removed from the battlefield. But the solution — we have captured a lot of people. We do not screen them well. We sent people who were brought in for ransom without, you know, any back checking, fact checking, and packed them off to Guantánamo. And that’s something that’s unprecedented in American history.

John Donvan: Let me get Marc Thiessen into it.

Marc Thiessen: I’d like to — I’m not a lawyer. You have an advantage over us. But I’d like to enter some documents into evidence, right? The inaugural address of Barack Obama.

David Frakt: Objection.

Marc Thiessen: Our nation is at war —

David Frakt: Hearsay.

Marc Thiessen: That is a true statement. The inaugural address of Barack Obama, our nation is at war against a far-reaching network of violence and hatred. Congressional Authorization for Use of Military Force passed by the House of Representatives 420 to 1, Senate 98 to nothing. We are at war. Supreme Court of the United States in the Hamdi decision. We are at war, we can hold people captured in the war as enemy combatants. And, my final piece of evidence, Osama bin Laden’s fatwa, which is entitled: “Declaration of War Against the Americans.” What part of war do you not understand? We are at war. The president, the Congress, the Supreme Court and the enemy all think we’re at war, and you do not.

John Donvan: Stephen Jones.

Stephen Jones: Well I suppose the problem that I have, Marc, is that I’m old enough to remember when Lyndon Johnson said we were at war with Vietnam and the legacy and the things that were done in the name of the declaration of war which was nonexistent. I regret to say that I’m old enough to remember what one of the presidents of my own party did in the name of national security in Watergate and when he tried to use the CIA and the FBI in the name of national security. I remember what happened in Iran Contra. And I remember the efforts made to assassinate Patrice Lumumba, and Premier Castro, Dr. Castro, and how that backlashed in this country, and I’m sorry. The powers of the federal government in the last 50 years destroyed any credibility when we were asked to believe people in power because frequently they know no more than what we can read in the Economist or the New York Times.

Now, that information may be subject to different interpretation. But General Hayden talked about when in history have we had habeas for enemy combatants. General, your argument is not with me; it’s with the Supreme Court, the majority of whom my presidents appointed. And they brought the argument three times that these people are entitled to habeas review. And if we look at our history, those things that we thought were good in a time of war because the national interest compelled it were wrong. And there is no greater example of that than the internment of 200,000 Japanese on the West Coast in World War II because we thought our national security required that we round them up, take them out of their homes and put them in detention camps because they had attacked Pearl Harbor. At least their Imperial Navy did.

John Donvan: All of which, at least I want to say to the other side, all of which at least goes to the issue of violation of core US values that we say defines us. Your opponents are saying, essentially, and I think they used the word “un-American,” that your position is so at odds with what we value, including equal protection under the law, that what you’re doing is un-American. Can you respond to that?

Marc Thiessen: Well I will tell you something about that. Stephen mentioned American history.

John Donvan: No no, I want the answer to his question.

Marc Thiessen: No, I’m answering his question. Since the Revolutionary War, the United States has held over 5 million enemy combatants. Until the war on terror, not one of them was given habeas corpus rights to petition their detention. The Geneva Convention, which regulates the conduct of war, nowhere in there does it say that you have a right to contest your detention in a war. My mother is here. And my mother was a prisoner of war. She fought in the Warsaw uprising in Poland against the Nazis. She threw Molotov cocktails at German soldiers. And she was taken into a prisoner of war camp in Germany that would make Guantánamo look like the Four Seasons. And she was not given the right to petition.

David Frakt: You would be referring to the Geneva Conventions that the Bush administration said did not apply.

Marc Thiessen: Excuse me. Yes. Well this is the point. You want to give Geneva Convention rights to terrorists. Well you don’t even want to give them Geneva Convention rights because you don’t accept that it’s a war. But to take the argument to argument. My mother followed the laws of war. She was in an army that carried its weapons openly, that did not target civilians, that wore uniforms or distinctive insignia. Terrorists do none of those things; they violate all of the rules of war, and so you want to get more rights — if I understand your position you want to get more rights to people who violate the laws of war, than rights to the people like my mother who followed the laws of war never had.

John Donvan: It’s not that we don’t trust you, but I want to check all this with your mother. Is she here?  Can you stand up for just a moment? Is it all true?  Is it all true, everything he says? [Marc’s mother says yes from the audience.][Over to] David Frakt.

David Frakt: It’s ironic that I’m being accused of not understanding war. I have been awarded a Global War on Terrorism Expeditionary Service Medal, two National Defense Service Medals, I understand that we are at war. My objection is to the conduct of that war in the way that we have particularly domestically, are operating and, yes, and I have freely acknowledged that we can detain combatants on the battlefield. Where there is a question about what their status is, then they’re entitled to a hearing under the Geneva Conventions. At a minimum, they are entitled — all persons are entitled to humane treatment. And this is what we got away from in the early years of the Bush administration until the Supreme Court over time reigned in these abuses. But these are the abuses that they would like to get back to. And I think, Marc suggested that we want to broaden and expand rights, and you know actually that’s not such a bad thing. Over time history marches forward and human rights are expanded. And sometimes we extend those rights even to people whom we despise.

John Donvan: Actually, I’d like to hear from Michael Hayden.

Michael Hayden: David, we both served in the Air Force and I commend you for your service but it’s unfair to make that — again, if you want to talk about what was done in terms of interrogation, again, it’s a separate debate. This is a legal concept. Which of the equally valued legal systems do we want to use? Domestic criminal law, or the laws of armed conflict? I think we have the right as a nation to use the laws of armed conflict because we were attacked by an opposing armed enemy force. And Stephen, I have to say, you have a broad suspicion of government, and you went back to Vietnam, and the Gulf of Tonkin, and I think the historical record is quite clouded whether or not the [USS] Turner Joy was fired on by North Korean patrol craft. I don’t think that there is any dispute that we were attacked in New York City and in Washington.

John Donvan: Stephen Jones to respond.

Stephen Jones: I concede that point, but it’s not the historical accuracy of the initiating incident that’s at issue. It’s what we do about the incident after it’s happened.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Who Are the Remaining Prisoners in Guantánamo? Part Two: Captured in Afghanistan (2001)

This is the second part of a nine-part series telling the stories of all the prisoners currently held in Guantánamo (174 at the time of writing). See the introduction here, and Part One, Part ThreePart Four, Part Five, Part Six and Part Seven.

This second article tells the stories of 32 prisoners seized in Afghanistan, mostly in December 2001. A handful are reportedly significant figures in the Taliban, and most of the rest were either transferred to US custody after a massacre in a fort in the northern Afghan city of Mazar-e-Sharif, or were seized after the Battle of Tora Bora, a showdown between al-Qaeda and US forces in the mountains near Jalalabad. Noticeably, only a few are accused of any serious involvement with al-Qaeda or terrorist activities (although these claims are themselves dubious), and four others have lost their habeas corpus petitions. It is also worth remarking that the majority of the men discussed in this chapter are Yemenis, and that many have presumably been cleared for release by President Obama’s Guantánamo Review Task Force, but are waiting to see if the President will, at any point the future, lift the unprincipled moratorium on transfers to Yemen that he announced in January.

ISN 004 Wasiq, Abdul-Haq (Afghanistan)
Reportedly the Taliban’s deputy minister of intelligence, he was seized in a Special Forces operation in Ghazni in December 2001, with Gholam Ruhani (released in December 2007). However, in his review board at Guantánamo in 2005, he claimed that “he was attempting to assist the US in capturing Mullah Mohammed Omar.”

ISN 006 Noori, Mullah Norullah (Afghanistan)
Noori was reportedly the governor of Balkh province under the Taliban, and according to press reports at the time, helped Mullah Mohammed Fazil (see ISN 007, below) negotiate the surrender of Kunduz, the last Taliban stronghold in the north of Afghanistan, with General Rashid Dostum of the Northern Alliance in November 2001. In Guantánamo, he played down his role, describing himself not as “a member of the Taliban,” but as a “soldier with them,” who had joined them in 1999. However, in a summary of evidence in January 2007, the US authorities clearly identified him as a significant figure in the Taliban.

ISN 007 Fazil, Mullah Mohammed (Afghanistan)
Reportedly the Taliban’s deputy defense minister, press reports in November 2001 stated he led the negotiations with General Dostum for the surrender of Kunduz. Both he and Noori surrendered to Dostum and were then kept under informal house arrest until they were handed over to US forces. In other reports at the time, Mohammed Muhaqiq, a leader of the Hazara, the ethnic group most persecuted by the Taliban, suggested that a number of Taliban leaders, including Noori and Fazil, should be prosecuted for war crimes, including ethnic cleansing. Like Noori, he tried to play down his role, but in a summary of evidence in October 2007 it was stated that approximately 3000 Taliban troops were under his control in October 2001.

ISN 088 Awad, Adham Ali (Yemen)
Seized after a group of al-Qaeda soldiers besieged in a hospital surrendered him to the Afghan authorities in December 2001, Awad, who was just 19 years old at the time, stated that he had been wounded in a bombing raid while walking through a market in Kandahar, but lost his habeas corpus petition in August 2009, when Judge James Robertson accepted what he described as a “gossamer thin” case put forward by the government. In June 2009, his appeal was denied by the D.C. Circuit Court.

ISN 239 Aamer, Shaker (UK-Saudi Arabia)
Shaker Aamer, the last British resident in Guantánamo, was born in Saudi Arabia and, in 1996, moved to the UK after traveling in the US, Europe and the Middle East. He has a British wife, and four British children, the youngest of whom he has never seen. Aamer’s road to Guantánamo began when he, along with Moazzam Begg, took his family to live in Kabul, in June 2001, to work for a charity involved in humanitarian aid projects, including a girls’ school and various well-digging projects. After the US-led invasion in October 2001, Aamer arranged for the evacuation of his family from Afghanistan, but was thwarted in his own attempts to leave. He was taken in by an Afghan family, but was then seized by Afghan soldiers, who held him and abused him for several weeks before handing him over — or, more probably, selling him — to US forces. After horrendous abuse in US custody in Afghanistan, including prolonged sleep deprivation and starvation, so that he lost 60 pounds in weight, he apparently made a number of false confessions used by the US to justify his detention, and was then transferred to Guantánamo, where he became one of the most significant prisoners, attracting the support of his fellow inmates, and the fear and suspicion of the authorities, because of his relentless advocacy on behalf of those held without rights in the “War on Terror.” Charismatic and eloquent, he brokered a deal that brought a halt to the prison-wide hunger strike in the summer of 2005, but when the authorities reneged on their promise to make the prison more compliant with the Geneva Conventions, he was then imprisoned in solitary confinement for at least 18 months, and, ever since, has been held in a block reserved for prisoners regarded by the authorities as non-compliant or particularly influential. Despite being cleared for release by a military review board under the Bush administration in March 2007, the British government claims that negotiations for his release to the UK have stalled because of security concerns on the part of the US authorities, but this seems implausible, as any security concerns could easily be addressed in the UK. Instead, it appears that Aamer is still held because of what he knows, including knowledge of the terrible events of June 9, 2006, when three prisoners died and, he has stated, he was tortured to within an inch of his life. His presence in the UK is vital to the inquiry into British complicity in torture announced by Prime Minister David Cameron in July, in part because he won a court case in the UK in December 2009, to secure information relating to his allegations that British agents were in the room when he was tortured by US forces, and the campaign to free him from Guantánamo continues.

ISN 240 Al Shabli, Abdullah (Saudi Arabia)
The US authorities allege that al-Shabli was “recruited to go to al-Farouq camp by a mujahideen fighter who had fought in Afghanistan,” that he was “supplied with a false Yemeni passport, travel funds, tickets and the locations of guest houses in Afghanistan,” and that he trained at al-Farouq, and at another camp in Kabul, although he was not at either camp for long, as he only arrived in Afghanistan in August 2001, and al-Farouq closed after the 9/11 attacks. The authorities also made an attempt to link him with Osama bin Laden, but it was not entirely convincing. It was alleged that he stated that he “saw Osama bin Laden passing by in the Tora Bora mountains,” but it not clear that he was ever in Tora Bora, because, elsewhere in the government’s evidence, it was stated that, after fleeing Kabul, he stayed in a house in Jalalabad for three weeks, and then traveled in a convoy towards the Pakistani border. When the convoy came under fire, he and others were taken in by Afghan locals, who then arranged for them to be seized by Northern Alliance soldiers. At no point in this story, therefore, was there any suggestion that he engaged in combat, or had even been in a position where he might have engaged in combat, and it is surprising that he was not released in 2006 or 2007, when dozens of Saudi prisoners were released.

The following seven prisoners survived the Qala-i-Janghi massacre in November 2001, which followed the surrender of the northern city of Kunduz, when several hundred Taliban foot soldiers — and, it seems, a number of civilians — all of whom had been told that they would be allowed to return home if they surrendered, were taken to a fortress run by General Rashid Dostum of the Northern Alliance. Fearing that they were about to be killed, a number of the men started an uprising, which was suppressed by the Northern Alliance, acting with support from US and British Special Forces, and US bombers. Hundreds of the prisoners died, but around 80 survived being bombed and flooded in the basement of the fort, and around 50 of these men ended up at Guantánamo. All but these seven have been released.

ISN 091 Al Saleh, Abdul (Yemen)
In Guantánamo, al-Saleh said that he had answered a fatwa calling for young men to travel to Afghanistan, but felt that “the Taliban cheated him because he was fighting the Northern Alliance, which was not a cause that he believed in; therefore, it was not really a jihad for him.” He also denied knowing any members of al-Qaeda, and stated that, if returned to Yemen, he would “get married” and would “disregard anyone who suggests that he fight jihad.”

ISN 115 Naser, Abdul Rahman (Yemen)
Naser was accused of arriving in Afghanistan in January 2001 and fighting on the Taliban front lines for six months at Khawaja Ghar, prior to his capture. It was also stated that, in Guantánamo, he had been “cited for numerous incidents of failure to comply, guard harassment, assault, and inciting of disturbances during his detention.” However, it was also noted that he “denie[d] seeing Osama Bin Laden while in Afghanistan,” and “stated that if he were released, he would return home to the family farm and get married.”

ISN 117 Al Warafi, Mukhtar (Yemen)
Al-Warafi had his habeas corpus petition denied in March 2010 by Judge Royce C. Lamberth. Al-Warafi claimed that he had traveled to Afghanistan to work as a medic, and had tended wounded Taliban fighters at a clinic in Kunduz, but Judge Lamberth denied his habeas petition not only because he believed that he had been acting as part of the Taliban’s “command structure,” but also because Congress had removed the Geneva Conventions’ requirement not to imprison medics when passing the Military Commissions Act in 2006, which cynically stated, “No person may invoke the Geneva Conventions … in any habeas corpus proceeding … as a source of rights in any court of the United States.”

ISN 128 Al Bihani, Ghaleb (Yemen)
Al-Bihani had his habeas corpus petition denied in January 2009 by Judge Richard Leon. He had worked as a cook for Arab forces supporting the Taliban, and Judge Leon concluded that this met the definition of “support” for al-Qaeda or the Taliban that justified his detention. He explained that “faithfully serving in an al-Qaeda-affiliated fighting unit that is directly supporting the Taliban by helping prepare the meals of its entire fighting force is more than sufficient to meet this Court’s definition of ‘support,’” and added, “After all, as Napoleon was fond of pointing out, ‘An army marches on its stomach.’” Al-Bihani appealed, but his appeal was denied by the D.C. Circuit Court in January 2010, in a ruling in which the court claimed that his argument that “the war powers granted [to the President] by the AUMF [the Authorization for Use of Military Force] and other statutes are limited by the international laws of war” was “mistaken.”

ISN 131 Ben Kend, Salem (Yemen)
Ben Kend (also identified as Salem Ahmed Hadi) reportedly fought on the Taliban front lines for six months, prior to his capture. However, in a statement prepared for a review board in 2006, he stated that he was “shocked” to see an allegation that he had “fought with the Taliban in Kabul and in Kandahar from July 2001 to December 2001.” Leaving aside the fact that he was seized in November 2001, he “responded that he did not fight in Kandahar, although he was in the area.”

ISN 202 Bin Atef, Mahmoud (Yemen)
Bin Atef is accused of arriving in Afghanistan for jihad in June 2001, training at al-Farouq, and fighting on the Taliban front lines. In an interrogation, he apparently stated that “his enemies were the Northern Alliance,” and also stated that “he never shot at or killed anyone,” and that, although he “was asked to take an oath to Osama bin Laden, [he] did not take one since he might have been obligated to do things that he might not want to do.”

ISN 434 Al Shamyri, Mustafa (Yemen)
He reportedly fought with the Taliban for ten months after answering a fatwa. One unidentified source claimed that he was “a trainer at al-Farouq,” and another allegation stated, implausibly, “Indications are that the detainee was a commander of troops at Tora Bora” (this was impossible, as he was captured before the battle of Tora Bora). One other allegation in particular — that “A detained al Qaida official identified [him] as a Yemeni national who participated in the Bosnian Jihad” — is unlikely, as he would have been only 15 or 16 years old at the time. It was also claimed that, in Guantánamo, he “was cited for harassing guards, inciting disturbances and several hostile acts.”

ISN 440 Bawazir, Mohammed (Yemen)
Bawazir may have been present at Qala-i-Janghi, but he denied it. As I explained in The Guantánamo Files, he also denied claims that he trained at al-Farouq and fought with the Taliban, stating that he traveled to Afghanistan to provide humanitarian aid, and also spent time visiting the front lines with a religious figure who used to ask the soldiers if the knew why they were fighting, stating, “Religion is not all about fighting.” He claimed that all the allegations against him — including a claim that he attended Osama bin Laden’s daughter’s wedding in Kandahar — came about because he was tortured. “When I came to Mazar-e-Sharif they questioned me [and asked] me if I was from al-Qaeda,” he said. “They used to hit me physically until they broke my skull … Then I had to say yes I had met Osama bin Laden, that I talked with the Taliban, that I knew about nuclear rockets, and that I know everything about what al-Qaeda is up to.” In 2005, Bawazir embarked on a hunger strike (the largest of many throughout the prison’s history), which involved painful force-feeding, and at one point his weight dropped to just 100 pounds. In November 2009, he petitioned the D.C. District Court to declare that force-feeding was “tantamount to torture,” but Judge Gladys Kessler ruled that she did not have the “appropriate expertise” to decide whether that was true.

ISN 441 Al Zahri, Abdul Rahman (Yemen)
In statements at Guantánamo, al-Zahri apparently admitted traveling to Afghanistan in the hope of fighting in Chechnya, but ended up fighting against the Northern Alliance, when he was wounded and subsequently seized by US forces. He may have been at Qala-i-Janghi, although this is not clear, and he has also provided conflicting accounts of his allegiances, on occasions mentioning his admiration for al-Qaeda and claims that he met Osama bin Laden on several occasions, and on one other occasion denouncing bin Laden “as a heretic, who attacked civilians — in violation of the laws of Islam.”

ISN 461 Al Qyati, Abdul Rahman (Yemen)
Al-Qyati, who was cleared for release by a military review board under President Bush, reportedly traveled to Afghanistan in May 2001, trained at al-Farouq, and was a guard “for 39 high-level Taliban personnel” at Kandahar airport, where he was seized in November 2001. According to his habeas corpus petition, submitted in December 2008, although listed as a Yemeni, he was “born and raised in Saudi Arabia and has never lived in, or even traveled to Yemen.”

Prisoners captured in the Tora Bora regionThe following 16 prisoners were mostly captured around the Tora Bora region in December 2001, following a showdown between al-Qaeda (and Taliban forces supporting them), and the US, which provided bombers to back up a military campaign that was primarily conducted by Afghan forces. Notoriously, the US allowed Osama bin Laden and other senior leaders of al-Qaeda and the Taliban to escape from Tora Bora. Around 50 men seized at this time ended up in Guantánamo, although it is by no means certain that all of them had been involved in the conflict. Around three dozen of these prisoners have already been released.

ISN 242 Qasim, Khaled (Yemen)
In his tribunal at Guantánamo, Qasim stated that he had traveled to Afghanistan in late 1999, but denied undertaking any military training, and claimed that he had sat around in guest houses for two years. He did, however, admit that he was in the Tora Bora mountains in November 2001, and said that, after hiding in caves for several weeks, he and his companions descended from the mountains when one of them was injured, which was when they were arrested. The US authorities allege that he traveled to Afghanistan after responding to a fatwa, that he stated that he “originally wanted to fight in Kashmir, because Muslims were being killed there,” that he attended al-Farouq on two occasions, and spent some time on the Taliban front lines before traveling to Tora Bora. It is not known whether the authorities have also been relying on other allegations, which seem less reliable: that he “has been identified as an al-Qaeda instructor,” who trained fighters at “an unidentified location” near Bagram airbase, that he “was in charge of a group at Tora Bora,” and that he “has been identified as somebody who is experienced in explosives and was an instructor at al-Farouq.”

ISN 244 Nasir, Abdul Latif (Morocco)
Nasir, also identified as Abdullatif Nasser, is, according to the US authorities, a veteran fighter who had spent three years fighting with the Taliban, had attended three or four training camps, and was seized in Tora Bora. The authorities also allege that he was “a member of the al-Qaeda Explosives Committee and an explosives instructor,” although it is unclear how much of this is truth, and how much is fiction. Nasir himself has stated that he was not a member of al-Qaeda, and that he “disagreed with what bin Laden and al-Qaeda were doing outside of Afghanistan.” He has also stated that “he did not think Osama bin Laden was in a position to issue a fatwa because he is not an Islamic scholar,” and condemned the 9/11 attacks because it was “against Islamic principles to attack innocent people.” According to his lawyers, he had worked as a small-scale businessman in Libya and Sudan, and had also spent time in Yemen and Pakistan. In Guantánamo, he has experienced particularly harsh treatment, because he has stood up for the rights of his fellow prisoners, and has refused to stay silent in the face of injustice.

ISN 321 Kuman, Ahmed Yaslam Said (Yemen)
Kuman, who was 20 years old when seized, was initially accused of traveling to Afghanistan in response to a fatwa, training at several camps including al-Farouq, and fighting against the US-led coalition in Bagram and Tora Bora. He was reportedly captured during Ramadan by the Northern Alliance. By 2006, the US authorities had built up a more detailed profile of his supposed activities, but it is unclear whether the allegations are necessarily reliable. Apparently identified “at a guest house on the Taliban front lines in Kabul” in late 1999, he was also “identified as the bus driver for a guest house in Kandahar,” was “seen in Tora Bora,” where he “was a fighter,” was “identified as suspected al-Qaeda due to his association with the Kandahar Airport group,” and was identified “as having been a bodyguard for Osama bin Laden.” While some of these claims sound unnervingly like “confessions” produced under dubious circumstances by Kuman’s fellow detainees (and the Kandahar airport allegation is particularly associated with a notoriously unreliable witness), it was also alleged that he “claimed he was personal friends with Osama bin Laden’s son,” that bin Laden “was like a father to him,” and that he claimed he had access to bin Laden “at any time because of this relationship.” Although there have been no reports about how Kuman has been treated in Guantanamo, it appears that he has been a consistent hunger striker. He weighed just 115 pounds on arrival, in May 2002, and at one point, in January 2004, his weight dropped to just 91 pounds (PDF).

ISN 498 Haidel, Mohammed (Yemen)
In Guantánamo, Haidel stated that he traveled to Afghanistan “to get married and for a change of environment.” The US authorities alleged that he trained at al-Farouq, was sent to the front lines in Kabul, and was then driven with other fighters, to Tora Bora, where, he said, “he sat in a cave for fifteen days,” and was then injured by a bomb blast, captured by the Northern Alliance and taken to a prison in Kabul, before being handed over to the Americans. In response to an allegation that he received mortar training, Haidel said, “When I was in the Kandahar prison, the interrogator hit my arm and told me I received training in mortars. As he was hitting me, I kept telling him, ‘No, I didn’t receive training.’ I was crying and finally I told him I did receive the training. My hands were tied behind my back and my knees were on the ground and my head was bleeding. I was in a lot of pain, so I said I had the training. At that point, with all my suffering, if he had asked me if I was Osama bin Laden, I would have said yes.” A long-term hunger striker at Guantánamo, Haidel weighed just 105 pounds on arrival in May 2002. In November 2002, his weight dropped to just 90 pounds, and at the time that the Pentagon’s declassified weight records came to an end, in November 2006, he weighed just 102 pounds.

ISN 502 Bin Ourgy, Abdul Bin Mohammed (Tunisia)
Formerly an Italian resident, bin Ourgy, who was cleared for release from Guantanamo by a military review board under the Bush administration, stated that he traveled to a training camp in Afghanistan in 1997 that was unconnected to al-Qaeda, and that he married an Afghan woman in 2000. A “senior al-Qaeda lieutenant” accused him of being an explosives expert, who was at Tora Bora, and was also involved in the assassination of Ahmed Shah Massoud, the leader of the Northern Alliance, on September 9, 2001, but these allegations are, of course, untrustworthy, as they may have been extracted through the use of torture. In July 2009, it was suggested that he might be transferred to Italian custody, to face a trial. The Italian media reported that he was “suspected of having had links in Milan with people who sought volunteers to fight in Iraq and Afghanistan with Islamic insurgents,” but in December 2009, when two other Tunisians were transferred to Italian custody, he remained in Guantánamo.

ISN 506 Al Dhuby, Khalid (Yemen)
Allegedly recruited for military training in Afghanistan after being shown videos of atrocities in Chechnya, al-Dhuby reportedly arrived at al-Farouq in late July 2001, and trained for a month and a half until the camp closed. He was then taken to Tora Bora, where he “stayed in one of several caves large enough to fit three or four people,” and then left the area with a group of other men. He said that as they passed through a valley he “saw planes dropping bombs on their location and stated the bombing went on for one night,” and added that he “hid from the bombs until the next morning,” but that many of the men traveling with him “were killed and injured by the bombing.” After the bombing, he was seized by Northern Alliance soldiers and held in an Afghan prison in Kabul before being handed over — or sold — to US forces. At Guantánamo, he maintained that he had never fired a shot at anyone, that he “was not a fighter or a killer,” and that he only “wanted to train to protect himself and his family as well as defend his country.”

ISN 508 Al Rabie, Salman (Yemen)
In Guantánamo, the authorities could not initially decide whether they thought al-Rabie (also identified as Salman Rabeii), who was 20 years old at the time of his capture, had been seized in Tora Bora, or in Jalalabad, as he claimed. By 2006, they decided that he had attended al-Farouq in August 2001, and that he was captured “coming out of the Tora Bora mountains” on December 16, 2001 “after surrendering to Afghan forces.” In October 2006, however, his father told Gulf News that Salman had only traveled to Afghanistan in search of his brother, Fawaz. “I sent Salman to look for his brother and bring him back from Afghanistan, but the war broke out and he could not come back. He was detained and put in Guantánamo,” he said.

ISN 509 Khusruf, Mohammed (Yemen)
As I explained in The Guantánamo Files, Khusruf, who was seized after a bombing raid in the Tora Bora region, said that he went to Afghanistan to teach the Koran, and asked, “Is it really reasonable that al-Qaeda or the Taliban, in bad need of men to fight, have to go to Yemen to find men at 60 years old to fight? Is this logical?” (according to US records, he was actually 51 years old at the time of his capture). He admitted training at al-Farouq, but said that he only did so because the man who arranged his travel told him he needed to be able to defend himself. He also explained that, after his arrest, he was moved from a jail in Jalalabad to “an underground prison” in Kabul — possibly the CIA’s “Dark Prison,” or else an Afghan jail — where “they would interrogate and beat us.” He added that those who were wounded “were also there” — presumably some of the other men rounded up in the Tora Bora region, who also ended up in Guantánamo.

ISN 511 Al Nahdi, Sulaiman (Yemen)
Cleared for release by a military review board under the Bush administration, al-Nahdi lost his habeas petition in February 2010, when Judge Gladys Kessler ruled that he had “entered into the ‘command structure’ of al-Qaeda during his travel from Pakistan to Afghanistan, during his attendance at al-Farouq, and through his role as a guard at Tora Bora, even though these demonstrations of his involvement in the “command structure” actually demonstrated how generally insignificant he was. As I explained at the time, “In a review board at Guantánamo, he explained that the leaders of al-Farouq ‘ordered us to move from one place to another. They told us to go to Tora Bora so that is where we went.’ Judge Kessler also noted that al-Nahdi had stated that ‘[a]t the time, you could not ask them why and where you were going. You cannot refute them. You had to do what they told you to do.’”

ISN 522 Ismail, Yasin (Yemen)
In April 2010, Ismail, who may have been just 19 when he was seized, lost his habeas petition when Judge Henry H. Kennedy Jr. refused to accept his claim that he had been kidnapped in Kabul by Afghans and taken to Tora Bora, where he was sold to US forces, and concluded instead that he had trained at al-Farouq and had traveled to Tora Bora as a fighter, like Sulaiman al-Nahdi. Nevertheless, it is far from reassuring that, throughout his time in US custody, he has alleged that he was tortured and subjected to sexual humiliation, and that he has been subjected to regular assaults by the Immediate Reaction Force (IRF), teams of five soldiers who respond to the most minor infractions of the rules with brutality.

ISN 535 El Sawah, Tariq (Egypt-Bosnia)
The last prisoner put forward for a trial by Military Commission under President Bush, El-Sawah, now 52 years old, is a veteran of the Bosnian conflict, who had married a local woman and had then traveled to Afghanistan, where he became an explosives expert at al-Farouq. Ferociously opposed to the Northern Alliance, but not to the US, he apparently became one of the most useful informers within Guantánamo, according to an article in the Washington Post in March 2010, which explained that, according to a former military intelligence official, “He was an old-soldier type who’d just had a bellyful. Right after he got to Guantánamo, he told the interrogators he’d had it,” and he became “the source of 150 first-rate information reports.” Former prisoners dispute this account, questioning El-Sawah’s mental health, and the quality of his information, but it has led to a strange situation for El-Sawah and Mohamedou Ould Slahi (ISN 760), who, unlike El-Sawah, was tortured until he decided to start talking (and whose value as an informer is therefore suspicious as well). As “two of the most significant informants ever to be held at Guantánamo,” in the Post’s words, they live in “a little fenced-in compound,” allowed to write, in Slahi’s case, and to paint, in El-Sawah’s case. As the Post also explained, “Each has a modular unit outfitted with a television. Each has a well-stocked refrigerator. They share a garden, where they grow mint for tea.” However, notwithstanding doubts about the quality of their evidence as informers, the Post article pertinently pointed out how shabbily informers are treated in the post-9/11 world, explaining, “Some military officials believe the United States should let them go — and put them into a witness protection program, in conjunction with allies, in a bid to cultivate more informants,” and quoting W. Patrick Lang, a retired senior military intelligence officer, who said, “I don’t see why they aren’t given asylum. If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

ISN 549 Al Dayi, Omar (Yemen)
Al-Dayi, who weighed just 98 pounds when he arrived in Guantánamo, is accused of traveling to Afghanistan in August 2001. It is also alleged that he stayed at a safe house in Kandahar, but became ill with malaria after one day, and “had trouble standing and walking,” and that, after six weeks at the safe house, he and others in the house were told to go to Jalalabad, where they stayed in another safe house for a few weeks before leaving for Tora Bora. In the mountains, it was alleged that al-Dayi “was shown to his position,” with 10-12 other Arabs, but that his group, though armed, “spent most of its time hiding in one of the three caves located close to its position.” Wounded in the leg by a missile, he was then “evacuated by an Afghan on a donkey to a nearby village,” and driven to the hospital in Jalalabad, where he stayed for two months “before being taken by Americans to a prison in Kabul” — presumably the “Dark Prison” — before his transfer to Guantánamo.

ISN 550 Zaid, Walid (Yemen)
As I explained in The Guantánamo Files, Zaid, who was wounded in the left foot in an air raid in the Tora Bora region, and was then hospitalized in Jalalabad before being handed over — or sold — to US forces, denied that he went to Afghanistan for “Jihad readiness military training,” as alleged, and said that he had just finished his final year studying Arabic literature at college, and went to Afghanistan a fortnight before 9/11 because he hoped to teach Arabic in an Afghan school. He admitted attending al-Farouq, but said that he had only done so because some Afghan acquaintances said that Afghanistan “was a country with a great deal of fighting,” and suggested that he should get some training in self-defence. At other times, he appears to have conceded that he traveled to Afghanistan to support the Taliban, but he has maintained that he “harbors no ill will towards the United States” and “only wishes to return home and put this part of his life behind him.”

ISN 552 Al Kandari, Fayiz (Kuwait)
A Kuwaiti from a wealthy family, with a history of humanitarian work, al-Kandari has always maintained that he was a humanitarian aid worker who arrived in Afghanistan in August 2001, was caught up in the chaos following the 9/11 attacks and the US-led invasion of October 2001, and was seized by Afghan forces and sold to the US military in December 2001, as he tried to cross the mountains to Pakistan. Despite this, the US authorities allege that between August and December 2001, he somehow managed to attend al-Farouq, “provided instruction to al-Qaeda members and trainees,” “served as an adviser to Osama bin Laden,” and “produced recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad.” The authorities took these allegations so seriously that, in November 2008, he was put forward for a trial by Military Commission, although the charges have not been revived under President Obama. Sadly, the US authorities seem to have encouraged themselves to believe that al-Kandari is significant because he has been particularly resistant to the pressure to cooperate and has steadfastly refused to make false statements about himself or about anybody else. Over the years, he has been subjected to a vast array of “enhanced interrogation techniques,” which, as his military defense lawyer, Lt. Col. Barry Wingard described them, “have included but are not limited to sleep deprivation, physical and verbal assaults, attempts at sexual humiliation through the use of female interrogators, the ‘frequent flier program,’ the prolonged use of stress positions, the use of dogs, the use of loud music and strobe lights, and the use of extreme heat and cold.” On September 17, 2010, Fayiz al-Kandari lost his habeas corpus petition.

ISN 553 Al Baidhani, Abdul Khaliq (Saudi Arabia)
Also identified as Abdul Khaled al-Bedani, he was just 18 at the time of his capture, and, by his own account, arrived in Afghanistan with particularly unfortunate timing. He admitted that he was recruited to receive military training, but said that he was in a guest house in Kabul, awaiting training, when he heard about 9/11 and decided to leave Afghanistan immediately. As this was an impossible task for a teenager without a passport (like all other recruits, he was obliged to hand in his passport “for safekeeping” when he arrived), he ended up fleeing with other recruits to Tora Bora, where he shared a bunker with a number of armed men and was provided with a gun. Wounded during a bombing raid, he was “then picked up by local Afghans who turned him over to the Northern Alliance.” Although he had received no military training and insisted that he never fired a shot, his admission that he was “provided with a weapon” was sufficient for his tribunal at Guantanamo to decide that he had “participated in military operations against the coalition.”

ISN 554 Al Assani, Fehmi (Yemen)
Cleared for release by a military review board under the Bush administration, al-Assani, like Sulaiman al-Nahdi (ISN 511), lost his habeas petition in February 2010, when Judge Gladys Kessler ruled that he had “entered into the ‘command structure’ of al-Qaeda during his travel from Pakistan to Afghanistan, during his attendance at al-Farouq, and through his presence at Tora Bora, even though these demonstrations of his involvement in the “command structure” actually demonstrated how generally insignificant he was. As I explained at the time, there there was “something rather pathetic about al-Nahdi’s claim that many of the men at Tora Bora, ‘including himself, were scared, and only wanted to go home after the fighting began,’ and the report of his attempt to leave (which, Judge Kessler noted, demonstrated only that he “acted in proper ‘command mode’”), when he ‘asked his commander … if he could leave, and after being rebuked did not attempt to do so.’”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Public Record, Eurasia Review, Uruknet and New Left Project.

Who Are the Remaining Prisoners in Guantánamo? Part One: The “Dirty Thirty”

This is the first part of a nine-part series telling the stories of all the prisoners currently held in Guantánamo (176 at the time of writing). See the introduction here, and Part Two, Part Three, Part Four, Part Five, Part Six and Part Seven.

The 20 prisoners listed below were the first group of prisoners seized crossing from Afghanistan to Pakistan in December 2001. They have been identified as the “Dirty Thirty,” because of allegations that they served as bodyguards for Osama bin Laden, although these allegations have long been challenged by the prisoners and their attorneys, and by those who have studied the stories in detail, for three reasons: firstly, because the majority of the men had been in Afghanistan for such a short amount of time that it is inconceivable that they would have been trusted with such an important role; secondly, because one source of the allegations is Mohammed al-Qahtani (ISN 063, see below), who was tortured at Guantánamo, and who later withdrew his false allegations; and thirdly, because two other sources of the allegations are Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi (ISN 1457 and ISN 1453), whose false confessions were recently exposed in a US court, in the habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman (ISN 027, see below).

Moreover, as the figures indicate, ten of the “Dirty Thirty” have already been released, and although some were Saudis, there are no indications that any of them have returned to militant activity (unlike others — 11 in total — who, according to reports in February 2009, had “left the country and joined terrorist groups abroad”). In fact, the most significant story, out of all the released prisoners, seems to be that of Farouq Ali Ahmed, a Yemeni released in December 2009, who maintained throughout his detention that he was a missionary, despite counter-claims that he was a bodyguard for bin Laden, and that he had been seen at Osama bin Laden’s private airport in Kandahar, where he was “wearing camouflage and carrying an AK-47.”

As I explained in 2007, this particular allegation proved so intolerable to Ahmed that his Personal Representative (a military officer assigned to the prisoners in place of a lawyer during the tribunals at Guantánamo in 2004-05) investigated his files, and submitted a written protest, in which he stated that the government’s sole evidence that Ahmed had been at bin Laden’s airport was the statement of another prisoner, who, according to an FBI memo that he presented to the tribunal, was a notorious liar. According to the FBI, he “had lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.” As the Personal representative discovered, after cross-referencing the detainees’ files, this particular man had made false allegations against 60 of his fellow prisoners.

Bearing this in mind, an analysis of the 20 remaining members of the so-called “Dirty Thirty” reveals that only three have been subjected to any kind of serious allegations relating to their involvement with al-Qaeda, although it is certain that, of the rest, some are among the 26 Yemenis that, in January, the Obama administration’s interagency Guantánamo Review Task Force recommended should continue to be held indefinitely without charge or trial.

ISN 026 Ghazi, Fahed (Yemen)
As I explained in The Guantánamo Files, Ghazi, who was cleared for release by a military review board under President Bush, was just 19 years old at the time of his capture, according to US military records, and was apparently at al-Farouq (the main training camp for Arabs in Afghanistan, associated with Osama bin Laden in the years before 9/11) for just nine days before the camp closed. According to Human Rights Watch, he was just 17 years old when he was seized. Human Rights Watch also noted, “His daughter, who was two months old at the time of Ghazi’s arrest, is now eight years old. The two reportedly send drawings back and forth to each other regularly.” Also see this letter that he submitted to his military review board in September 2006.

ISN 027 Uthman, Uthman Abdul Rahim Mohammed (Yemen)
Uthman, who “said that he had traveled between Kabul and Khost teaching the Koran from March to December 2001.” won his habeas corpus petition in February 2010, when Judge Henry H. Kennedy Jr. ruled that the main allegation against him — that he had “acted as a bodyguard for Osama bin Laden” — came from unreliable statements made by two other prisoners, Sharqwi Abdu Ali al-Hajj (ISN 1457) and Sanad Yislam Ali al-Kazimi (ISN 1453). Judge Kennedy stated, “The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.” The government has appealed the ruling.

ISN 028 Al Alawi, Muaz (Yemen)
Al-Alawi lost his habeas corpus petition in January 2009, when Judge Richard Leon ruled that he “was part of or supporting Taliban or al-Qaeda forces,” because he “stayed at guest houses associated with the Taliban and al-Qaeda … received military training at two separate camps closely associated with al-Qaeda and the Taliban and supported Taliban fighting forces on two different fronts in the Taliban’s war against the Northern Alliance.” Although none of the allegations above related to “hostilities against the US or its coalition partners,” and Judge Leon acknowledged that al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khost and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

ISN 029 Al Ansi, Muhammad (Yemen)
Al-Ansi has stated that he and some friends taught the Koran in a village outside Khost, although the authorities claim, via allegations made by unidentified individuals, by an “al-Qaeda commander,” and by an “al-Qaeda operative,” that he was a bodyguard for Osama bin Laden, that he was present at Tora Bora, and that he also guarded bin Laden at his airport in Kandahar. Al-Ansi was so disturbed by the allegations against him that he told his review board, “All of the prisoners here are trying to leave this place. All the prisoners are telling lies about other prisoners just to get out of here. All these allegations are lies and I want the truth.”

ISN 030 Al Hikimi, Ahmed (Yemen)
Al-Hikimi has stated that, after selling his taxi business, he traveled to Khost, where he met a local student with whom he spent about eight months teaching in various villages, and then returned to the Yemen, traveling again in February 2001, when, he said, he hooked up with the student once more and resumed teaching. In contrast to these claims, he was subjected to allegations similar to those leveled against Muhammad al-Ansi. An “al-Qaeda operative” claimed to have seen him at the al-Farouq camp and in Kabul in 1999, and said that he “would drive from the front line to the mountains once a week to supply food to the brothers.” Other unnamed sources also identified him as a driver, and “an escort for Osama bin Laden and his family” said that he saw him fighting on the front lines against the Northern Alliance. Crucially, another anonymous source identified him “as an associate of the Kandahar Airport Group” — the same false allegation that was leveled against Farouq Ali Ahmed.

ISN 031 Al Mujahid, Mahmoud (Yemen)
As I explained in The Guantánamo Files, al-Mujahid stated that he was inspired to visit Afghanistan to teach the Koran by a sheikh at whose institute he was studying. In contrast, the US authorities alleged that he was a bodyguard for bin Laden, that he was “seen on the front lines,” and that he was “seen with Osama bin Laden in Kandahar, Afghanistan (April 2001) and Tora Bora (November 2001).” In November 2007, he attended a military review board, in which he declared that he had made up the story about the sheikh, when he was first interrogated in US custody in Pakistan, and added that he wanted to explain this to the board, as it had been on his mind for five years, but he had been unable to discuss it with his interrogators, because they were “stupid” and only gave him “bad treatment.” In the hearing, he admitted that he had arrived in Afghanistan in July 2000, but “strongly denied” knowing anything about the 9/11 attacks or any other terrorists attacks, and also dismissed as ridiculous the notion that he could have been become a bodyguard for Osama bin Laden.

ISN 034 Al Yafi, Al Khadr Abdallah (Yemen)
Al-Yafi, who was cleared for release by a military review board under the Bush administration, is a farmer who has stated that, after hearing a sermon, he “decided to return home and sell his sheep so that he could travel to Afghanistan to teach.” In contrast, the US authorities have drawn on what I described as an “array of unsubstantiated allegations, which appear to have involved the exploitation of several ‘high-value detainees’”: a “senior al-Qaeda commander” apparently “recognized the detainee’s face as a Yemeni he saw at the Kabul guest house, probably in the 1999-2000 time frame”; another, a “senior al-Qaeda lieutenant,” stated less confidently that he “recalled possibly seeing the detainee at the al-Zubayr guest house” before 9/11; and an alleged “bodyguard of Osama bin Laden stated he saw the detainee (circa 1999) at an Arab compound in Kandahar.” It was also stated, without any additional explanation whatsoever, that he “was seen at Tora Bora.”

ISN 035 Qader Idris, Idris (Yemen)
Idris has stated that he taught the Koran in Kabul for approximately eight months. Set against his story are just two allegations: that the individual who facilitated his travel to Afghanistan from Yemen “has been identified by a known al-Qaeda member as a fund collector and recruiter for al-Qaeda,” and that the group of 30 Arabs that he joined as he fled Afghanistan for Pakistan was “organized” by Mohammed Annas, a “known alias” of Ali Hamza Ismail (aka Ali Hamza al-Bahlul, see ISN 039, below).

ISN 036 Idris, Ibrahim (Sudan/Yemen)
Idris, sometimes listed as a Yemeni, and sometimes as Sudanese, is accused of attending al-Farouq and of fighting with the Taliban for two years. In December 2007, he attended a military review board and stated that he had actually been seized in Pakistan, where he had traveled for 40 days to work as a missionary. “No disrespect to the interrogators,” he explained. “I said what I had to say, and they made me say things that weren’t true.”

ISN 037 Al Rahabi, Abd Al Malik (Yemen)
Al-Rahabi (also identified as Abd al-Malik Abd al-Wahab) has stated that he traveled to Pakistan and Afghanistan with his wife and his young daughter, although the US authorities allege that he “was very close to Osama bin Laden, and had been with him a long time. He was a known Osama bin Laden guard and errand boy and was frequently seen at Osama bin Laden’s side.” As I explained in The Guantánamo Files, he told his lawyer that he had made false confessions, stating that he was “tortured by beatings” in Kandahar, that his thumb was broken by American interrogators, and that he was “threatened with being held underground and deprived of sunlight until he confessed.” According to his lawyers, around September 2000, he “traveled with his wife to Pakistan in order to study the Koran. Their daughter was born while they were together in Pakistan. In November 2001, his wife returned to Yemen. Al-Rahabi intended to return as well, but he was arrested while in Pakistan.”

ISN 038 Al Yazidi, Ridah (Tunisia)
As I explained in The Guantánamo Files, it is alleged that he traveled to Afghanistan from Italy in 1999, that he attended the Khaldan training camp, and that he fought on the Taliban front lines in 2001. There is little publicly available information about al-Yazidi’s response to the allegations, although he refuted additional claims that he was involved with the Algerian Armed Islamic Group (the GIA, or Groupe Islamique Armé), and also apparently “stated that he did not engage in any significant combat during the entire time he was on the front lines.”

ISN 039 Al Bahlul, Ali Hamza (Yemen)
Widely described as Osama bin Laden’s “press secretary,” al-Bahlul produced a propaganda video for al-Qaeda and was first put forward for trial by Military Commission in February 2004. He was formally charged in June 2004. At a pre-trial hearing in August 2004, he declared, “I am an al-Qaeda member,” and asked the judge, “Am I allowed to represent myself?” and at another hearing in January 2006, he decided to withdraw from the proceedings, waving a sign that read “boycott” in Arabic, He was charged for a second time in February 2008, after the first version of the Commissions was ruled illegal by the US Supreme Court in June 2006, and in May 2008 he again decided to boycott pre-trial hearings, explaining, “I am responsible for my own actions in this world and the afterworld. I don’t consider it to be a crime.” His trial took place in October 2008, and he was convicted of conspiracy, solicitation of murder, and providing material support to terrorism after a one-sided trial in which he refused to mount a defense. He received a life sentence, which he is serving in solitary confinement in Guantánamo, away from all the other prisoners, but his lawyers are currently appealing the sentence, on the basis that providing material support to terrorism is “a fabricated war crime that was not traditionally triable in a military commission as of the time of Mr. al-Bahlul’s affiliation with al-Qaeda” (as his former military defense attorney, Lt. Col. David Frakt, explained), and also on the basis that his trial was unfair because he was denied the right to represent himself.

ISN 040 Al Mudafari, Abdel Qadir (Yemen)
Al-Mudafari (aka al-Mudhaffari) apparently “stated that he wanted a struggle or jihad and chose to travel to Afghanistan rather than Palestine,” but was subjected to several dubious allegations (beyond the most obvious — that he was a bodyguard for Osama bin Laden). It was also alleged that he was “identified as a trainer” at al-Farouq, and was also stated that he was identified by “an al-Qaeda operative” as being “a friend of Osama bin Laden’s personal secretary,” and was also “identified as being at a Taliban Supreme Leader’s [sic] compound.” Confusing matters were notes that he had received instruction in Yemen from Sheikh Muqbil al-Wadi (who was actually opposed to bin Laden), his own claims that he traveled to teach the Koran, and a claim by another unidentified source, who “stated that he did not think that the detainee ever fought with the Taliban because he was against the Taliban.”

ISN 041 Ahmad, Majid (Yemen)
Ahmad, who was 21 years old when seized, apparently admitted that he “first learned of jihad in Afghanistan” at an institute in the Yemen, “and then wanted to fight along with the Taliban.” He added that he “prayed and fell in love with the idea of dying for the sake of God,” and after being given a fatwa by a sheikh, who told him during a telephone call that “it was a good thing for Muslims to go fight jihad,” traveled to Afghanistan and “fought for the Taliban the two years he was in Kabul.” Nevertheless, as with the majority of the so-called “Dirty Thirty,” there appears to be no basis for the claim that he “was an Osama bin Laden bodyguard and was usually by his side.” He has repeatedly stated that he never met bin Laden and has also stated that “the attack on the World Trade Center was wrong because Islam did not permit people to kill innocent people.”

ISN 042 Shalabi, Abdul Rahman (Saudi Arabia)
According to an unidentified source cited at Guantánamo, Shalabi “was teaching at a madrassa” in Kandahar, and, moreover, he “taught over 300 men” and was “very well known.” In contrast, the US authorities have drawn on various claims about him being a bodyguard for Osama bin Laden that appear to be as unreliable as those leveled against the majority of the “Dirty Thirty.” According to one source, he “came to Afghanistan around 1997 and became a bodyguard for Osama bin Laden after 1998,” and according to another, he was “related to a bodyguard for Osama bin Laden.” Other unidentified sources said that they saw him in Kabul and Jalalabad “approximately ten times with Osama bin Laden in the latter part of 2001 and identified him as Osama bin Laden’s security guard,” that they saw him “speaking directly with Osama bin Laden” and that he “was with him at all times while in Tora Bora.” In Guantánamo, he has been a long-term hunger striker, and has been on a hunger strike since August 2005, when the largest hunger strike in the prison’s history took place. He weighed 124 pounds on arrival at Guantánamo in January 2002, but weighed just 100 pounds in November 2005. In September 2009, after four years of being force-fed daily, he weighed just 108 pounds, and wrote a distressing letter to his lawyers, in which he stated, “I am a human who is being treated like an animal.” In November 2009, when his letter was included in a court submission, one of his lawyers, Julia Tarver Mason, stated, “He’s two pounds away from organ failure and death.”

ISN 043 Moqbel, Samir (Yemen)
As I explained in The Guantánamo Files, Moqbel (also identified as Samir Mukbel) stated that he was tricked by a friend, who told him he would find a job in Afghanistan. “He told me I would like it in Afghanistan and I could live a better life than in Yemen,” he said in a hearing at Guantánamo. “I thought Afghanistan was a rich country but when I got there I found out different … it was all destroyed with poverty and destruction. I found there was no basis for getting a job there.” His lawyers at Reprieve explained that he “is the eldest son of seven brothers and five sisters, and as the eldest son, is the family breadwinner,” and added that he was enticed by the false prospect of “more jobs and better salaries” in Afghanistan because, at the time, he “was working in a factory in Yemen earning just $50 a month.” In Guantánamo, in response to allegations that he was a bodyguard for bin Laden, and that he fought with the Taliban in various locations, he stated, “These accusations make you laugh. These accusations are like a movie. Me, a bodyguard for bin Laden, then do operations against Americans and Afghanis and make trips in Afghanistan? I don’t believe any human being could do all these things … This is me? I have watched a lot of American movies like Rambo and Superman, but I believe that I am better than them. I went to Pakistan and Afghanistan a month before the Americans got there … How can a person do all these operations in only a month?”

ISN 044 Ghanim, Mohammed (Yemen)
In Guantánamo, Ghanim was accused of having “participated in jihad activities” in Bosnia and of taking part in the Yemeni civil war, and of being a bodyguard for Osama bin Laden. In response, he has apparently stated that he fought only with the Taliban. In a report from a former prisoner published by Cageprisoners, it was stated that Ghanim was subjected to prolonged sleep deprivation in Guantánamo, as part of what was euphemistically termed “the frequent flier program,” and was also denied medical treatment: “Every two hours he would get moved from cell to cell, 24 hours a day, seven days a week, sometimes cell to cell, sometimes block to block, over a period of eight months. He was deprived of sleep because of this and he was also deprived of medical attention. He had lost a lot of weight. He had a painful medical problem, haemorrhoids, and that treatment was refused unless he cooperated. He said he would cooperate and had an operation. However, the operation was not performed correctly and he still had problems. He would not cooperate. [H]e was [then] put in Romeo Block where the prisoners would be made to stand naked. It was then left to the discretion of the interrogators whether a prisoner was allowed clothes or not.”

ISN 045 Al Rahizi, Ali Ahmad (Yemen)
Al-Rahizi (also identified as al-Rezehi) has stated that he “went to Afghanistan to teach the Koran because the Imam at his mosque told him that the Afghans were using magic and were not following the teachings of Islam.” In contrast, the US authorities allege that he attended al-Farouq and was one of bin Laden’s bodyguards. Al-Rahizi has specifically stated that he “taught the Koran to Afghan children at the Abu Bakur al-Sadiq mosque in Shurandam” (in Kandahar province), where he “worked directly for the mosque Imam,” and that it was the Imam who told him about the US-led invasion of October 2001, and advised him to return home. In the clearest indication that the group of men seized together had picked up stragglers along the way, he stated that he traveled to Khost, via Ghazni, “and then traveled by foot for two days to a small town,” where he “joined approximately 30 other Arabs … who had assembled to flee Afghanistan,” and who subsequently traveled together for eight days before being arrested on the Pakistani border by the Pakistani authorities.

Ibrahim al-Qosi at a pre-trial Military Commission hearing at Guantanamo, July 15, 2009 (sketch by court artist Janet Hamlin)ISN 054 Al Qosi, Ibrahim (Sudan)
Subjected, over the years, to a variety of allegations, including claims that he served as the accountant for a company run by Osama bin Laden in Sudan from 1992 onwards, that he visited Chechnya to fight in 1995, with bin Laden’s support and permission, that he served as a bodyguard, cook and driver for bin Laden in Afghanistan from 1996 onwards, and that he fought in Afghanistan as part of a mortar crew, al-Qosi was first put forward for a trial by Military Commission in February 2004 (along with Ali Hamza al-Bahlul, ISN 039), and was formally charged in June 2004. At a hearing in August 2004, his military defense lawyer, Air Force Lt. Col. Sharon Shaffer, complained that she was not being provided with the information she needed to defend al-Qosi, and also complained that al-Qosi had told her that the translators in court were so poor that he couldn’t understand what was happening. When the Commissions were revived, al-Qosi was charged, for a second time, with al-Bahlul in February 2008, and took part in several inconclusive hearings. In November 2009, he was charged for the third time, after President Obama decided to revive the Commissions, and last month he accepted a plea bargain, making a guilty plea on one count of conspiracy and one count of providing material support to terrorism, in a decision that was widely seen as providing his best opportunity to be released from Guantánamo. A military jury sentenced him to 14 years’ imprisonment on August 11, but was not told the details of his plea deal, and it is therefore thought that the jury was being used to deliver what appears to be a public vindication of the Commissions’ ability to deliver tough sentences, even though, by all accounts, al-Qosi will be held for just two more years before being released.

ISN 063 Al Qahtani, Mohammed (Saudi Arabia)
Despite allegations that he was intended to be the 20th hijacker for the 9/11 attacks, al-Qahtani is not expected to face a trial of any kind. He was originally put forward for a trial by Military Commission (with Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks) in February 2008, but the charges were subsequently dropped by Susan Crawford, the Convening Authority for the Commissions, responsible for pressing charges, because, as she explained to Bob Woodward in January 2009, “We tortured Qahtani. His treatment met the legal definition of torture.” A harrowing log recording the details of al-Qahtani’s torture from November 2002 to January 2003, in a program approved by defense secretary Donald Rumsfeld, was made publicly available in June 2005 (PDF).

Note: The courtroom sketch of Ibrahim al-Qosi, by Janet Hamlin, is courtesy of Janet Hamlin Illustration.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Public Record, Eurasia Review, the World Can’t Wait, Uruknet, Blog from Middle East and New Left Project. mentioned on No Lies Radio, Portland Indymedia and Dhafir Trial.

Introducing the Definitive List of the Remaining Prisoners in Guantánamo

Over the next month, in an attempt to focus attention more closely on Guantánamo, and on the remaining prisoners who are held there, I’ll be publishing a nine-part series of articles (in conjunction with Cageprisoners, for whom I work as a Senior Researcher), telling, for the first time, the stories of the 176 men who are still held.

The series begins with the stories of 20 men described by the US authorities as part of the “Dirty Thirty,” seized crossing from Afghanistan to Pakistan in December 2001, who are mostly regarded as having been bodyguards for Osama bin Laden, even though there is copious evidence that these allegations were produced by a number of prisoners who were tortured — including Mohammed al-Qahtani, for whom Guantánamo’s version of the CIA’s torture program was devised in the fall of 2002, and approved by then-defense secretary Donald Rumsfeld.

The articles to follow, covering the rest of the prisoners still held, deal with those seized in particular locations: two cover prisoners seized in Afghanistan (Part Two and Part Eight); two more tell the stories of prisoners seized crossing from Afghanistan to Pakistan in December 2001 (Part Three and Part Four); three deal with prisoners seized in Pakistan (Part Five, Part Six and Part Seven); and the final article covers the “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, and other prisoners, seized in a variety of countries, who were subjected to “extraordinary rendition” and imprisonment in secret CIA prisons (Part Nine).

In reading these articles, I hope that readers will be able to discover the stories of the men behind the statistics of Guantánamo — and the still-repeated and thoroughly unfounded claims that the prison holds “the worst of the worst.” In the accounts, readers will encounter a variety of different individuals. Many of these men traveled to Afghanistan before the 9/11 attacks to fight with the Taliban against the Northern Alliance, and suddenly found themselves to be enemies of America in a “War on Terror,” and others were not even involved in any kind of military conflict, and were, instead, students, humanitarian aid workers, missionaries, or economic migrants, caught in the wrong place at the wrong time.

Many of the 176 men who were still in Guantánamo at the time of writing were rounded up for the substantial bounty payments (averaging $5000 a head) that were paid by the US military for “al-Qaeda and Taliban suspects,” and, given that 596 men have already been released, it should be profoundly troubling that the majority of the men still held were either foot soldiers in an inter-Muslim civil war that had nothing to do with al-Qaeda or the 9/11 attacks, or civilians still struggling to establish their innocence.

Readers will also encounter many stories of brutality and torture in these accounts, but, I believe, few stories of genuine terrorists, and should bear in mind that, as advised by President Obama’s interagency Guantánamo Review Task Force, only 34 of the remaining 176 men are to be put forward for trials, although 48 others are to be held indefinitely without charge or trial (because they are regarded as too dangerous to release, even though there is insufficient evidence to put them on trial), and 92 others are to be released.

One other man, Ali Hamza al-Bahlul, is serving a life sentence in isolation after being convicted in a one-sided trial by Military Commission in November 2008, in which he refused to mount a defense, and another — Ibrahim al-Qosi, a cook in an al-Qaeda compound — is waiting to hear how much longer he will be imprisoned after accepting a plea deal in his trial by Military Commission in July. Another prisoner, Ahmed Khalfan Ghailani (not included here) was transferred to New York in May 2009 to face a federal court trial for his alleged involvement in the 1998 African embassy bombings. His trial is scheduled to begin in the near future.

58 of the men approved for release (or for “transfer,” to use the Obama administration’s language, learned carefully from the Bush administration) are Yemenis, whose release was halted in January. After the capture of the failed Christmas Day plane bomber Umar Farouk Abdulmutallab, a Nigerian who was reportedly recruited in Yemen, President Obama capitulated to unprincipled criticism and issued a moratorium on any further releases to Yemen that appears to have no end date, and that clearly constitutes “guilt by nationality.”

I find it interesting to speculate on which of the Yemenis have been cleared (and who are the 31 Yemenis recommended for trials or for indefinite detention), as this information has not been made publicly available by the Obama administration, but more generally I’m interested to hear whether readers can figure out, from these articles, why the administration believes that there is a good reason to either charge or to continue holding 82 of these men, as it has never seemed plausible to me that there are 82 men in Guantánamo who pose what might be described as “a clear and present danger.”

The lists also contain references to the prisoners’ ongoing habeas corpus petitions in the US District Court in Washington D.C., where the prisoners have won 38 cases and the government has won only 16. Much of what has been confirmed about unacceptable evidence based on statements made by the prisoners themselves (under torture or duress) or by unreliable witnesses in Guantánamo or in other “War on Terror” prisons (who were subjected to torture, duress, or, in a few cases, the promise of better living conditions), has come from these proceedings, and it is disappointing that, at the time of writing, 12 of the 38 men who have won their petitions are still held.

In addition, it is no less disappointing that the majority of those who have lost their petitions were nothing more than low-level Taliban foot soldiers (and, in two cases, a medic and a cook), whose ongoing detention, on an apparently legal basis, is not a validation of the habeas process, but is, rather, an indictment of the unjust basis for holding “War on Terror” prisoners — neither as criminal suspects, not as prisoners of war — that was conceived by the Bush administration, and that has been largely preserved under President Obama.

Andy Worthington
London, September 2010

Please note: The nine parts of the list contain the stories of three released prisoners who have not been identified — two of unspecified nationality who were released in Georgia in March 2010, and an Afghan released in Spain in July 2010.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Public Record, Uruknet, Pacific Free Press, Global Research, My Catbird Seat, Veterans TodayShoah, Break the Chains, and New Left Project.

By One Vote, US Court OKs Torture and “Extraordinary Rendition”

Sometimes a story is so troubling that it takes some time to digest, and the ruling delivered last Wednesday by the Ninth Circuit Court of Appeals (PDF), in a lawsuit filed by the ACLU on behalf of five men subjected to “extraordinary rendition” and torture, is one such story. The men — Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi — claim, with some justification, and with copious amounts of evidence in their possession, that their rendition, and their torture in a variety of countries, was facilitated by Jeppesen Dataplan, Inc., a subsidiary of Boeing whose role as “The CIA’s Travel Agent” was first exposed, through statements made by a former Jeppesen employee, in an article by Jane Mayer for the New Yorker in October 2006.

In statements that were later submitted to the court, Sean Belcher, a former employee, said that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, “We do all the extraordinary rendition flights,” which he also referred to as “the torture flights” or “spook flights.” Belcher stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “some of these flights end up” with the passengers being tortured, but added that Overby had explained, “that’s just the way it is, we’re doing them” because “the rendition flights paid very well.”

Last Wednesday, however, when asked to rule on whether these five men should have their day in court, or whether the government should be allowed to dismiss their lawsuit by claiming that the exposure of any information relating to “extraordinary rendition” and torture threatened the national security of the United States, American justice contemplated looking at itself squarely in the mirror, telling truth to power, and allowing these men the opportunity to address what had happened to them in a court of law, but, at the last minute, flinched and turned away. By six votes to five, the Court decided that, in the interests of national security, the men’s day in court would be denied.

As Judge Raymond C. Fisher stated in the majority opinion (in which he was joined by Chief Judge Alex Kozinski, and Judges Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan and Carlos T. Bea):

This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed.

This is an extraordinarily depressing result, because the Jeppesen case, which had been dismissed by the District Court in 2008, had then been won on appeal before three judges in the Ninth Circuit Court of Appeals in April 2009. On that occasion the judges in question — Judges Michael Daly Hawkins, Mary M. Schroeder and William C. Canby, Jr. — had thoroughly demolished the government’s claim — first submitted by the Bush administration, and then, to the judges’ great surprise, slavishly copied by President Obama’s Justice Department — that it could dismiss the case by invoking the “state secrets” doctrine.

Unlike last Wednesday, when the majority agreed with the government regarding the “state secrets” doctrine, the panel of judges in April 2009 had no hesitation, in reviewing what they described as the “relatively thin history” of the doctrine, in dismissing the government’s reliance on two precedents because of their irrelevance to the Jeppesen case. One, Totten v. United States, involved a secret agreement between the government and a spy in the nineteenth century, and the other, United States v. Reynolds, from 1953, dealt with the prevention of “discovery of secret evidence when disclosure would threaten national security.”

As I explained in an article at the time:

[The judges, in an opinion written by Judge Hawkins] did this first by pinpointing the “clear error” the District Court made when it initially dismissed the case, when the court declared, “inasmuch as the case involves ‘allegations’ about the conduct of the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege,” and also declared that “the very subject matter of this case is a state secret.” In contrast, the Appeals Court judges insisted that “The subject matter … is not a state secret, and the case should not have been dismissed at the outset.”

Dismissing the government’s arguments, they concluded that, although the government may be entitled to protect certain evidence in the interests of national security, it has no justification for suppressing judicial scrutiny of the case as a whole, particularly because some information relating to the case is already publicly available, and also because what the government is actually trying to do, with no legal precedent whatsoever, is to impose a blanket ban on all discussion of potential government wrongdoing.

In a particularly powerful passage, Judge Hawkins stated:

At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves allegations” about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit — it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law (emphasis added).

Elsewhere, as I also explained:

[T]he judges drew on Boumediene [v. Bush, the 2008 ruling granting the Guantánamo prisoners constitutionally guaranteed habeas corpus rights], in which the Supreme Court stated that, while “[s]ecurity depends upon a sophisticated intelligence apparatus,” it “subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the adherence to the separation of powers.” They also drew on Hamdi v. Rumsfeld, another important Guantánamo case in the Supreme Court (in 2004), in which the justices stated, “Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’”

I was also particularly impressed by the following passage:

If the simple fact that information is classified were enough to bring evidence containing that evidence within the scope of the [state secrets] privilege, then the entire state secrets inquiry — from determining which matters are secret to which disclosures pose a threat to national security — would fall exclusively to the Executive branch, in plain contravention of the Supreme Court’s admonition that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers” without “lead[ing] to intolerable abuses.” … A rule that categorically equated “classified” matters with “secret” matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process.

As I also explained:

What was notable about this passage was that it succinctly encapsulated the entire approach to “classified” information that was maintained by the Bush administration, and also mentioned invoking national security to prevent embarrassment — or, it could be said, to prevent the disclosure of crimes.

Sixteen months on, it is clear from reviewing Judge Hawkins’ opinion that nothing has fundamentally changed, and that therefore the majority that prevailed last week has simply repeated the “clear error” the District Court made when it initially dismissed the case, and has endorsed the President’s right to “classify politically embarrassing information simply to place it beyond the reach of judicial process,” albeit with more obvious hand-wringing.

If justice does still mean anything under the cowardly Obama administration, then the Jeppesen case will proceed to the Supreme Court, although, since Justice John Paul Stevens retired (PDF), there is no longer much hope for justice there either. Justice Stevens’ replacement, Obama’s former Solicitor General Elena Kagan, is contaminated by her involvement in national security arguments on behalf of her former boss, and will have to recuse herself from anything touching on the Bush administration’s toxic legacy. As a result, the Supreme Court is likely to split 4-4 on issues like the Jeppesen case, handing victory back to the senior administration officials who so desperately crave blanket immunity for the Bush administration’s torturers.

This is a profoundly depressing thought, especially as so many commentators have expressed their disgust at last week’s ruling. In an editorial entitled, “Torture Is a Crime, Not a Secret,” the New York Times lamented, “The decision diminishes any hope that this odious practice [“extraordinary rendition”] will finally receive the legal label it deserves: a violation of international law,” and the Los Angeles Times declared, “The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.”

For the ACLU, Ben Wizner stated:

This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.

Moreover, on Monday, Scott Horton of Harper’s Magazine not only pointed out that the facts of the case “were established beyond any reasonable doubt without the need to turn to classified information,” but also reminded readers that, “Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the US Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.” Horton also reminded readers that, by signing the UN Convention Against Torture in 1987, the United States “made an unequivocal commitment to the international community to compensate those who are tortured by its agents” — and also, it should be noted, to bring the perpetrators to justice.

In addition, Horton pointed out that, in February this year, the Court of Appeal in London, which “had already viewed the formidable evidence” in Binyam Mohamed’s case, had brought to an end 18 months of Obama-style stonewalling by foreign secretary David Miliband regarding British knowledge of Mohamed’s torture by US agents, and had ordered the information to be publicly released, leading to a criminal investigation, which is ongoing, and, with a change of government, the announcement of a judicial inquiry into British complicity in torture — something that many of Obama’s supporters had hoped would happen in the US. As Horton explained, “The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes.”

Horton also explained that, although the position taken by Eric Holder’s Justice Department — that it is “protecting state secrets essential to our security” — is “risible, and half of the court saw through it,” what is really at stake is the possibility that evidence produced in the US could be used elsewhere. As he stated:

Twenty-three US agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 US agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein [Air Force Base] in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion — or even in most of the press accounts about it.

While we wait to see what — if anything — happens next, I’d like to leave you with some sensible words regarding the legitimate scope of the “state secrets” doctrine, as written by Judge Hawkins in the opening paragraphs of his dissenting opinion last week, in which he was again joined by Judges Schroeder and Canby, and also by Judges Sidney R. Thomas and Richard A. Paez:

The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint. Outside of the narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiffs’ allegations or a valid defense that would otherwise be available to the defendant.

This is important, because an approach that focuses on specific evidence after issues are joined has the benefit of confining the operation of the state secrets doctrine so that it will sweep no more broadly than clearly necessary. The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law. This case now presents a classic illustration. Plaintiffs have alleged facts, which must be taken as true for purposes of a motion to dismiss, that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute. They have alleged in detail Jeppesen’s complicity or recklessness in participating in these violations. The government intervened, and asserted that the suit would endanger state secrets. The majority opinion here accepts that threshold objection by the government, so Plaintiffs’ attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of non-secret evidence in their own hands or in the hands of third parties.

It is true that, judicial construct though it is, the state secrets doctrine has become embedded in our controlling decisional law. Government claims of state secrets therefore must be entertained by the judiciary. But the doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets. When, as here, the doctrine is successfully invoked at the threshold of litigation, the claims of secret are necessarily broad and hypothetical. The result is a maximum interference with the due processes of the courts, on the most general claims of state secret privilege. It is far better to require the government to make its claims of state secrets with regard to specific items of evidence or groups of such items as their use is sought in the lawsuit. An official certification that evidence is truly a state secret will be more focused if the head of a department must certify that specific evidence sought in the course of litigation is truly a secret and cannot be revealed without danger to overriding, essential government interests. And when responsive pleading is complete and discovery under way, judgments as to whether secret material is essential to Plaintiffs’ case or Jeppesen’s defense can be made more accurately. […]

This is an appeal from a Rule 12 dismissal, which means that the district court was required to assume that the well-pleaded allegations of the complaint are true, and that we “construe the complaint in the light most favorable to the plaintiff[s].” The majority minimizes the importance of these requirements by gratuitously attaching “allegedly” to nearly each sentence describing what Plaintiffs say happened to them, and by quickly dismissing the voluminous publicly available evidence supporting those allegations, including that Jeppesen knew what was going on when it arranged flights described by one of its own officials as “torture flights.” Instead, the majority assumes that even if Plaintiffs’ prima facie case and Jeppesen’s defense did not depend on privileged evidence, dismissal is required “because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.” But Jeppesen has yet to answer or even to otherwise plead, so we have no idea what those defenses or assertions might be. Making assumptions about the contours of future litigation involves mere speculation, and doing so flies straight in the face of long standing principles of Rule 12 law by extending the inquiry to what might be divulged in future litigation.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published on the Huffington Post. Cross-posted on Common Dreams, The Public Record, Uruknet, CageprisonersUnited Progressives, The Progressive MindDandelion Salad and New Left Project.

For a sequence of articles discussing the use of torture in secret prisons, see: Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two) (April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison (May 2009), WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), Dark Revelations in the Bagram Prisoner List (January 2010), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), UN Human Rights Council Discusses Secret Detention Report (June 2010), UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq (June 2010), UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (June 2010), and also see the extensive Binyam Mohamed archive.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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